Time to Dump the Voting Rights Act

In advance of Wednesday’s Supreme Court argument on the Voting Rights Act (Shelby County v. Holder), I wanted to add my own comments to John Yoo’s thoughtful post below. As John notes, Section 5 of the Act requires some states and local governments to seek pre-clearance from the federal government before making any changes to their election laws, from the location and hours of polling places to the drawing of electoral districts. 

This is an extraordinary violation of state sovereignty, originally upheld as a temporary exercise of federal power under exceptional circumstances — i.e., persistent attempts by certain states to disenfranchise blacks. But the data by which certain localities were covered by the VRA hasn’t been updated since 1975. So why is the VRA still alive in 2013? Each administration finds something useful in it. The Obama Administration has, for example, used Section 5 to fight against voter ID laws. 

The exceptional circumstances that prompted the VRA are long gone, but the federal power grab remains — and is being used mainly for ill. Under section 5, the federal government can reject any proposed change in state or local law if Uncle Sam thinks that the changes will “diminish the ability of minority citizens . . . to elect their preferred candidates of choice.”

What does that mean — the “preferred” candidate of minority voters? In practice it means that the federal government assumes (1) that minorities vote as a bloc; (2) they invariably prefer candidates of their own ethnic group; and (3) that candidates from those minority groups will never win elections without the help of the federal government.

Hard to imagine a more condescending — and racist — basis upon which to build a federal law. So racist, in fact, that the unconstitutionality of the VRA should be a slam-dunk. The creation of these separate-but-equal minority electoral districts in certain states for certain ethnicities is the very essence of the racial classifications prohibited by the Equal Protection Clause.