When it comes to renewing some “temporary” provisions of the national Voting Rights Act, the worldview of some supporters of renewal is so skewed that one of them all but accused the black, Democratic attorney general of Georgia of being an Uncle Tom.
Meanwhile, even some leading academics who support the basic thrust of the provisions assert that without alteration, some of the provisions are likely to be found unconstitutional.
And the official U.S. Commission on Civil Rights has recommended that Congress look to make important changes in four aspects of the provisions at issue.
Yet until a revolt of sorts a few weeks ago by House Republican back-benchers, Congress seemed poised to renew the provisions almost wholesale — and even now, reports are that the congressional leadership wants to strong-arm the renewal through the legislative process without much change or public debate.
But Congress ought to move slowly on the subject. The provisions at issue don’t expire until August 6 of 2007. That’s plenty of time to get renewal right. Unlike the wise and morally necessary permanent parts of the Voting Rights Act such as the elimination of poll taxes, the few “temporary” portions of the Act are not only no longer needed, but indefensible in current form.
Yes, indefensible. Or worse, repugnant.
THAT’S WHY GEORGIA ATTORNEY GENERAL Thurbert Baker filed briefs in the landmark case of Georgia v. Ashcroft that challenged the Act’s renewable Section 5 on several fronts. His apostasy didn’t sit well with Laughlin McDonald, Director of the ACLU’s Voting Rights Project. Testifying before the Senate Judiciary Committee on May 9, Mr. McDonald had the gall to say this about Baker’s well-considered position: “He is an elected official, a politician, and they are subject to all kinds of pressures. I could simply point out that during the Reconstruction years, there were blacks who voted for racially segregated schools, who voted for poll taxes, and they did so for a lot of complex reasons.”
So, suddenly, even a widely respected black, Democratic statewide officeholder is equated with Reconstruction-era black Scalawags. Such is the demagogic tenor of the supporters of blanket renewal.
But Thurbert Baker is no Uncle Tom. In filing the briefs — which, by the way, won the day at the Supreme Court — he had an important point: The race-based gerrymandering that resulted from Section 5 had the effect of segregating, and thus isolating, black voters in ways that arguably left fewer elected officials with any incentives to consider their particular interests. In the name of guaranteeing that one district elect a black congressman, the gerrymanders typically result in creation of two or three districts so lily-white that their congressmen can afford not to pay heed to black voter concerns at all. That’s one reason why Vanderbilt University Law Professor Carol Swain, author of the book Black Faces, Black Interests: The Representation of African Americans in Congress, has testified before Congress that Georgia v. Ashcroft is a decision beneficial to black voters.
That said, the Supreme Court has put at least some limits on such racial gerrymandering. It is other parts of Section 5, and of a few other temporary sections of the Act, that remain the most troublesome.
THE MOST LONGSTANDING PROBLEM with Section 5 is its requirement that certain states or remote jurisdictions, almost exclusively from the old Confederacy, obtain “preclearance” from the Justice Department for any change in election laws or procedures, no matter how small. Change a primary election date a full two years in advance? Preclear it with Justice. Move a polling place from a school gymnasium to the same school’s cafeteria? Preclear it with Justice. Why? Because the Southern states affected, and only those states and jurisdictions, are presumed guilty of racism until they prove themselves innocent.
Never mind that the preclearance requirement from the 1965 Voting Rights Act originally was supposed to last just five years. Never mind that black voting registration and voting rates in the affected states now exceed that of many northern jurisdictions. Never mind that Richard Hasen, respected liberal Loyola University Law Professor, told Congress that he (along with other top scholars) “has deep concerns about the constitutionality” of preclearance as currently applied.
The reasonable objections to current preclearance requirements are manifold. First, they treat different states differently regardless of any remotely recent examples of discriminatory practices. Second, they put an unreasonable administrative burden both on the U.S. Justice Department and especially, as an utterly unfunded mandate, on state and local governments. Third, in practice they have provided cover for lawsuits used as purely political tactics, unrelated to any real questions of racial discrimination, sometimes even to the clear detriment of black voters. Fourth, they just aren’t necessary.
Consider first the sheer unfairness of continuing to burden Southern states (or parts of states) with preclearance requirements. Alabama Assistant Attorney General John Park testified to the Senate Judiciary Committee that the black voter turnout percentage in Alabama now exceeds white voter turnout. Professor Swain of Vanderbilt testified that “some of the most egregious violations” of voting rights these days take place not in the Deep South but in “uncovered states and jurisdictions that include parts of California, Florida, Hawaii, Tennessee and Pennsylvania.”
And the burden — in time, paperwork and money — is quite considerable. Alabama’s Mr. Park testified at length to that effect. Cash-strapped local officials, in particular, have at times been forced to scramble at the last minute even to get ballots printed for parochial elections because they were forced to wait for what should have been routine preclearance from Justice Department officials with better things to do.
Even worse, the bureaucratic nit-picking can tie up the court system. In several examples from Alabama, the Justice Department actually did preclear new election laws more than once, only to have judges order further preclearance proceedings years later. Why? Because (in one case) even though the state had submitted the entire law to the Justice Department with every change outlined in red, the judges faulted Alabama because its accompanying letter requesting preclearance did not specifically direct Justice’s attention to one of those red-lined changes. The court ruled thusly even though it acknowledged no discernible ill will or ill effects from the alleged lack of preclearance, and even though it found the supposed ambiguity “unintentional.”
The statistics, meanwhile, show that all this rigmarole is an unnecessary waste of time. In the past 24 years, according to the U.S. Commission on Civil Rights, “the ratio of objections to submitted changes dropped to 0.7 percent.” In the last ten years, there have been only 37 objections. Last year the Justice Department made only one objection out of 4,734 preclearance submissions. And since 1982, courts nationwide have found unconstitutional discrimination in voting procedures only 18 times — only 12 of them in the targeted states, with six of those violations unconstitutionally discriminating against not black voters but white ones. In several of those cases, too, the violations involved no new actions by the states, but instead merely isolated leftover effects of forgotten laws as ancient as 80 years old.
TO BE PERFECTLY CLEAR, nobody is suggesting that the Voting Rights Act be gutted, or that the act as a whole isn’t one of the best things Congress ever did. And even most of the critics of the temporary provisions believe that Section 5 as a whole ought to be renewed — but in substantially different form. Indeed, critics from the political right and left all seem on the same page as to several necessary changes. To wit:
First, preclearance requirements should apply to major electoral changes, not small ones such as the movement of polling machines (with adequate notice) from one corner to the next. Second, the provisions at issue should be renewed not for a whopping 25 years, as is currently proposed, but only for another five or seven. Third, if preclearance of major electoral-system changes is to be required at all, it should apply nationwide rather than only to certain targeted states. Fourth, all jurisdictions covered by preclearance requirements ought to be able to escape those requirements more easily upon demonstration of a clear record of nondiscriminatory practices.
Fifth, the “baseline” used to determine if preclearance remains necessary ought to be a recent year; most covered states right now are forced to compare their electoral practices to those in place in either 1972 or 1964. The absurdity of judging states by 42-year-old racial practices is almost self-evident; the nation has changed substantially for the better since then.
As Professor Swain put it to Congress — while testifying in favor of “renewal, but not in its present form” — “The bill under consideration risks falling into the category of poorly crafted legislation that will not serve national interests, the interests of minority voters, or the legacy of slain civil rights activists and civil rights leaders.”
It’s a damning indictment of Congress’s work product on this issue so far. Damning, and entirely accurate.