Hawaii is a very pretty place. I know because I've been there. But, pretty as it is, it belongs in the penalty box.
The penalty box I'm talking about is Section 5 of the Voting Rights Act. In 1965, Congress put nearly all of the Southern States under the thumb of Section 5 of the Voting Rights Act because they were good at discriminating against their African-American citizens when they tried to vote. Congress devised a formula that captured only those States that it wanted to penalize, states like Mississippi, Alabama, and Georgia. That formula has two parts (a) whether the jurisdiction used a "test or device," like a literacy test administered in a biased manner, as a way of discriminating against minorities who wanted to register to vote or vote on November 1, 1964; and (b) whether less than 50 percent of the voting age population was registered to vote on November 1, 1964 or voted in the elections in 1964, 1968, and 1972.
Covered jurisdictions cannot change their voting laws and practices without permission. That permission can be obtained either judicially from the U.S. District Court for the District of Columbia or administratively from the U.S. Department of Justice. But if permission is not obtained, the covered jurisdiction is stuck, even if it wants to do something that noncovered jurisdictions are already doing.
Things have changed for the better in the almost 40 years since 1972. When Congress was thinking about extending the life of Section 5 in 2006, two scholars, Keith Gaddie of Oklahoma and Charles Bullock of the University of Georgia, used the 2000 voter registration data to show that the average registration and turnout rates for minority voters for the six covered Southern states were not just better than 50 percent, those average rates were better than the national average. In Georgia and South Carolina, the black registration and turnout rates were higher than the white registration and turnout rates, and the registration rate was higher for black voters in Mississippi. In short, none of the six covered Southern states meets the second part of the Section 5 formula today.
They don't meet the first part of the Section 5 formula any more either. In fact, nobody has for some time, given that Congress prohibited the use of tests or devices temporarily in 1965 and permanently throughout the country several years later.
So, an apples-to-apples comparison of states would look at voter registration and participation data. That's where Hawaii comes in. If we looked at only the last three presidential elections before 2006 instead of looking at 40-year old elections, Hawaii would be the only state covered.
Congress brushed aside the suggestion that the coverage formula be updated when it extended Section 5 for another 25 years. Some said it was inappropriate to compare Hawaii with the covered jurisdictions, thinking that Hawaii doesn't have a history of voting discrimination.
But, that's not entirely true. In 2000, the Supreme Court held that Hawaii violated the 15th Amendment by allowing only those that it defined as being of Hawaiian "ancestry" to vote for the trustees of the Office of Hawaiian Affairs. In Rice v. Cayetano, the Supreme Court concluded that Hawaii was improperly using "ancestry as a racial definition and for a racial purpose."
That's not all. For the past several years, Congress has been considering the proposed Native Hawaiian Government Reorganization Act, also known as the "Akaka Bill," whose co-sponsors include Senators Akaka and Inouye of Hawaii. That bill would end-run Rice v. Cayetano and treat native Hawaiians like Indian tribes. As National Review pointed out, an effect of the bill would be to "partly disenfranchise a portion of the state's residents …." "[P]artly disenfranchis[ing]" some of a state's residents in violation of the 15th Amendment got the covered jurisdictions into trouble in 1965. Somehow, trying to do that isn't enough to put Hawaii into the penalty box.
Moreover, with the proposed Akaka Bill stalled in Congress, Senator Inouye is apparently working on a fix. A paragraph in the Senate Appropriations Committee's draft bill for Interior, Environment and Related Agencies Appropriations would pave the way for making Native Hawaiians an Indian tribe, even though Hawaiians belonged to a kingdom, not an Indian tribe. Senator Inouye's current move comes after he called allegations that he was trying to sneak the Akaka Bill into a 2009 Defense Appropriation bill "nonsensical" and claimed that the process for enacting the Akaka Bill was "fully transparent."
Maybe, the Voting Rights Act is really about politics, not whether Hawaii should be a covered jurisdiction. There is no way that reliable Democrats like Senators Akaka and Inouye, who apparently believe it's OK to "partly disenfranchise" some of Hawaii's residents, would make Hawaii submit all changes in its voting standards, practices and procedures to the Department of Justice for approval. The same holds true for any other Democratic Senators from non-covered jurisdictions; they could never vote for a formula that would include their home states. It's far easier for them to tell other states to do it.
Capturing states that have long since improved and leaving out states that should be included is a serious geographic mismatch that runs afoul of what the Supreme Court has called "the fundamental principle of equal sovereignty." The States enter the Union on an equal footing and must be treated equally afterwards unless Congress has a good reason not to. Congress had such a reason in 1965, but it's not 1965 anymore. Even so, Congress still treats Alabama differently from Tennessee and Mississippi differently from Hawaii.
Some suggest that, when Congress decides to treat States differently, it doesn't have to act with surgical precision. Maybe they're right, but a surgeon who removed six good toes and left one bad one would be guilty of malpractice.
Right now, at least one challenge to the constitutionality of the coverage formula is working its way through the courts. The district court did not side with the challengers, but perhaps the Court of Appeals or the Supreme Court will tell Congress that it's no longer 1965.
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