Tuesday, June 25, 2013

Voting Rights Act (1965) sec. 4 Overturned

I confess that the Voting Rights Act of 1965 is not at the top of my list of violations of the principal of federalism.  The problems that it sought to correct were real, they were horrifying, and they were a reminder that sometimes, in the fight between local government and national government, the national government is sometimes better.  But I have long felt uncomfortable with the manner in which the Voting Rights Act treated some states and counties as "special."  This has long seemed like a violation of equal protection, because VRA did not say, "States and counties that violate equal protection of the law will be subject to Department of Justice review of election procedures" but had a specific list, based on the situation in 1965.

As the Supreme Court's decision today in Shelby County v. Holder (2013) points out:
The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem. Section 5 of the Act required States to obtain federal permission before enacting any law related to voting—a drastic departure from basic principles of federalism. And §4 of the Act applied that requirement only to some States—an equally dramatic departure from the principle that all States enjoy equal sovereignty. This was strong medicine, but Congress determined it was needed to address entrenched racial discrimination in voting, “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” South Carolina v. Katzenbach, 383 U. S. 301, 309 (1966). As we explained in upholding the law, “exceptional conditions can justify legislative measures not otherwise appropriate.” Id., at 334. Reflecting the unprecedented nature of these measures, they were scheduled to expire after five years. See Voting Rights Act of 1965, §4(a), 79 Stat. 438. 
It is no longer 1965.  Is there still racism in our society?  Sure.  But I don't find it plausible that the situation is even roughly similar today.  Blacks vote throughout the United States, and there are black elected officials at all levels of government, right up to the Oval Office.  There might well be state and local governments that require national oversight, but is it likely that the list is the same today as it was in 1965?  If there is a case for section 4 today, it isn't the same offending governments that it was in 1965, and Congress should either come up with an objective set of criteria for determining this, or admit that the preclearance requirement no longer makes sense.

And yes, the parallel to affirmative action in employment and college admissions is obvious.  It isn't 1965 anymore.

UPDATE: The Shekel has a discussion of local governments in Michigan that are subject to the preclearance requirements:
For those of us who didn't realize that Michigan was affected by the Voting Rights Act, and was under the misconception that the VRA applied to the south and not this most northern of northern states, think again.
Interestingly, both Buena Vista Township and Clyde Township were under VRA supervision but ironically, no one at the Department of Justice overseeing the enforcement of the VRA can explain nor remember why they were included under the VRA preclearance requirements in the first place... 
Until Tuesday, the small charter township [Buena Vista Township] in Saginaw County was one of just two Michigan jurisdictions included in the list of states and counties across the U.S. that were required to get federal approval for any kind of change in election procedures or practices under Section 5 of the Voting Rights Act, an attempt to remove poll tests or other obstacles to minorities reaching the ballot booth....

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