Another Look at the Voting Rights Act

By David Will ’14

Liberals spin long lines, limited early voting and voter ID laws as squeezing access to the ballot box, particularly for poor and minority voters.  These measures’ alleged racially disparate impacts, from the 1960s to the modern day, have triggered the Justice Department’s scrutiny on many occasions. The Voting Rights Act, passed in 1965 at the Civil Rights Movement’s zenith, outlawed racially-based voter disenfranchisement. Specifically, Section 5 of the law gives the federal government oversight of voting procedures in states and municipalities with histories of discrimination. Monitored regions must clear any changes to election procedures with the Justice Department. In Shelby County v. Holder, the Supreme Court is set to decide whether the metric that selects localities for Section 5 coverage is antiquated and therefore inapplicable to the states.

While outdatedness typically does not damn a law’s constitutionality, the Voting Rights Act is unique in that, at the time of its passage, it was designed to be inherently temporal. As currently crafted, the law’s heightened oversight standard was supposed to have waned as racially-based voter discrimination disappeared. Initially designed to last only five years, Congress renewed Section 5 yet again in 2006 for 25 years without considering the country’s obvious progress in racial matters. In fact, the most recent election statistics used to determine which jurisdictions are subject to Section 5 scrutiny date back to before 1975.  In its current form, Section 5 of the Voting Rights Act is outmoded, and therefore unconstitutional, because the degree to which it infringes on state sovereignty no longer corresponds to the level of voter discrimination that remains in America. In Shelby County, the Court has the opportunity to right this wrong.

Nearly forty years after the Voting Rights Act’s initial passage, African Americans are well represented, both in office and at the ballot box, in states covered by Section 5. According to statistics cited in oral arguments by Chief Justice Roberts—and verified by Nate Silver of the New York Times—the percentage of black voter turnout does not vary between states covered by Section 5 and those that are exempt. With no difference in black civic engagement between states scrutinized and those left alone, there is no rational basis for Congress to subject the jurisdictions currently covered under Section 5 to a higher level of scrutiny. Unless the government’s contention is that, in spite of the numbers, southern states are more actively racist than other regions—a charge Solicitor General Donald Verrilli denies—the law is arbitrarily applied.

Given that Section 5 does not match up with 21st century demographics, the law’s proponents must look elsewhere to uphold the law’s constitutionality. A common vein of support centers on the policy-based nature in determining Section 5 jurisdictions, which advocates claim should be a legislative function. Linda Greenhouse of the New York Times writes, “Whether Section 5 of the Voting Rights Act covers the wrong jurisdictions, or too many, or too few is a policy judgment, as much for Congress to make as whether to raise the eligibility age for Social Security or Medicare.” This analogy, while rhetorically convenient, fails because it muddles the constitutional bases on which these policies rest. Congress derives its constitutional authority to enact and reauthorize the Voting Rights Act from the 14th Amendment, whereas social welfare programs are legitimized elsewhere. For example, the Supreme Court upheld both Social Security and the Affordable Care Act under the government’s taxing power.

The Court has customarily granted Congress wide latitude to oversee the states within the framework of the 14th Amendment, but Justice Anthony Kennedy, writing for the majority, narrowed this federal authority in the 1997 case Boerne v. Flores. The case concerned the Archbishop of San Antonio, who was initially prevented from renovating his church out of fear that its historical significance would be lost. He then sued under the Religious Freedom Restoration Act (RFRA), arguing that the law constituted a “substantial burden” on his and his congregants’ religious freedom without a compelling state interest. In finding the law unconstitutional as it applied to the states, thereby ruling in favor of the City of Boerne, the Justices held that Congress may not substantively expand or contract rights that the Court guarantees under the 14th Amendment. A fundamental question before the Court in Shelby County is whether Section 5 violates this principle.

While Congress cannot alter rights guaranteed under the 14th Amendment, it can enact laws to prevent or rectify violations at the state level of those rights. Delivering the opinion of the Court in the Flores case, Justice Kennedy stipulated that laws passed by Congress to oversee the states by way of the 14th Amendment should be commensurate in force to the problems they address. Race relations have quantitatively improved since the Section 5 selection formula’s last update, yet the law is applied with the aggression necessary to address the social ills of 40 years prior. Therefore, Section 5 is outside the bounds of Kennedy’s test; it represents an intrusion into the states’ affairs that is disproportionate to the problem it seeks to address.

Even if voter ID law advocates concede the statutes’ racially disparate impacts, Section 5’s selective application to the South is still unconstitutional because the enactment of supposedly discriminatory laws, such as voter ID measures, is not isolated to the supervised areas. Section 5’s selection formula, in theory, hones in on areas where discrimination still festers, yet supposedly discriminatory measures have proliferated beyond covered regions. If Section 5 were truly designed to cover regions with discriminatory practices, it would have to cover these regions as well. In Pennsylvania and Ohio, for example, judges struck down ID laws as well as restrictions on early voting ahead of the 2012 election on the grounds that they disenfranchised minorities. If the case of those who defend the law is accepted and taken to its natural end, Section 5’s implementation still does not match the problem at hand because it is not covering enough regions, singling out southern states for no rational reason.

For people of all political stripes, the declaration of Section 5 as unconstitutional should be heralded as a triumph. Striking it down recognizes four decades of progress that the Voting Rights Act does not. Measures cited by proponents of Section 5 as problematic, like voter ID laws, should not be evaluated by metrics that are almost 40-years-old. As the data show, we no longer live in an age where racial discrimination exists in our electoral process, and the policies in place that chase these phantoms continue to appear strikingly out of touch. As South Carolina Governor Nikki Haley noted, some form of identification is required for a wide array of activities, such as purchasing the medication Sudafed or boarding a plane. Have these laws left minorities congested and unable to fly? I think not.

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