The Supreme Court just took certiorari in Shelby County, Alabama v. Holder, which addresses the highly contentious issue of the constitutionality of Section 5 of the 1965 Voting Rights Act (VRA). The key point of the provision is the requirement that all state and local elections in states with a history of discrimination receive pre-clearance from the federal government for any and all changes in voting procedures. The state must establish, to the satisfaction of the Attorney-General or a three judge federal court in Washington D.C., that the change “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.”
The particular states that are subject to this requirement were determined by their voting practices as as of 1964, before the Civil Rights Act went into effect. The criteria for inclusion were the use of a restrictive device (such as a poll tax), and overall voter registration of under 50 percent. Section 5 has been continuously extended, for seven years in 1975, for another 25 years in 1982, and, most recently, for 25 years in 2006.
These tests, propounded in 1964, were certainly well-adapted to the abuses of the time. But times change — sometimes for the better. These dual requirements have virtually no relationship to the practices that evolved in the regulated states in the 47 years since their passage. Yet the threshold tests for coverage remain frozen in time, which is more of a reflection of the political mood in Washington than on any facts on the ground. The decision of Judge Tatel in the District of Columbia Court of Appeal, as well as the Solicitor General’s filing asking the Supreme Court not to take the case, both begin with lengthy accounts of the horrors of Southern practices in the nearly hundred years from the end of the Civil War to the passage of the 1964 Civil Rights Act. But far less attention is paid to the enormous strides that have been made in the subsequent 47 years, in part because of the early enforcement of these laws; and virtually none to any changes since 2006.
Notwithstanding its near-mythical status in the civil rights community, the VRA is not exempt from the law of diminishing marginal returns. Its pre-clearance procedure is highly intrusive in that it requires every change in voting laws, however innocuous, to go through this pre-clearance review. Since the 1982 Amendments to the VRA, certain government entities are entitled to a “bailout,” exempting them from the pre-clearance proceedings under the Act. But the terms of the bailout are highly restrictive, and the ability of minority groups to elect candidates of their choice is not sufficient grounds for ending the pre-clearance procedures without a further comprehensive review.
At the very least, these bailout and compliance procedures are time-consuming and costly. At the worst, they allow the federal government to engage in political machinations of its own to slow down decisions that it finds distasteful, putting the screws on state and local governments on matters that bear little or no relationship to race. In the well known decision of Northwest Austin Municipal Utility District No 1 v. Holder, the VRA was applied to the voting procedures needed to select the local utility board—an issue that has no civil rights valence whatsoever. An uneasy Supreme Court intimated that the stringent requirements of the VRA could subject it to its own constitutional challenge, on the grounds that its massive procedures were overkill in these elections. But the Court took refuge in the hoary doctrine of constitutional avoidance by expanding somewhat the opportunities for the Utility District to take advantage of the bailout provisions.
The constitutional issue must, however, now be squarely faced in Shelby County, where the federal government challenged an annexation program by the city of Calera, located within the county, that would have had the effect of eliminating the sole majority-black district that had been created pursuant to an earlier consent decree. Annexations are done for all sorts of reasons that have little or nothing to do with race, and the elimination of one black-majority district will necessarily spread the influence of black voters into other districts, so that it is hard to claim that this reorganization bears any relationship to the wholesale disenfranchisement of the pre-1965 years. The dangers of aggressive overintervention are clear. Yet the District of Columbia court upheld the extension of the act on the ground that it owed deference to Congress in light of the exhaustive record that it compiled in the legislative hearings prior to the 2006.
That decision seems wrong for two reasons. First, the longish record emphasizes only the negative and pays short shrift to the huge progress on racial relations in the South. Second, it affords insufficient weight to the other procedures that are available to public and private parties in the event that some form of discrimination does take place, including the active intervention (often misguided) of the Attorney General in various voter ID cases.
The case is one of clear overkill, for the conditions in the South are not remotely like the horrific state of affairs of 47 years ago. Just as there are risks in underestimating the dangers of discrimination when abuses are rampant, it is equally dangerous to overstate these dangers in the face of major institutional improvement. There was little evidence of systematic discrimination in 2006, and none to suggest that these problems will continue until 2032, when the current act is set to expire. This statute should be struck down, leaving it to Congress to pass more targeted legislation to deal with any set of supposed abuses. My guess is that just this result will come to pass, by only the usual threadbare 5-to-4 vote.