by Gilda R. Daniels, Associate Professor of Law, University of Baltimore School of Law. Daniels is a former Deputy Chief in the Department of Justice, Civil Rights Division, Voting Section. For more on Daniels' work, visit her website.
Four years ago, the Supreme Court dared Congress to change the coverage formula that determined which jurisdictions would be subject to federal oversight of voting changes under Section 5 of the Voting Rights Act. Congress did nothing. In the recent Shelby County decision, the Court indicated that it was forced to act stating, “[Congress’s] failure to act leaves us today with no choice but to declare §4(b) unconstitutional.” Further, the Court seems to deny its culpability, positing that the “nation has changed” and the formula does not address “current conditions.” While it acknowledges that the Voting Rights Act is responsible in large part for increasing voter registration for black voters and the number of minority elected officials, it essentially says that enough is enough. It gives the impression that it views Section 5 as medicine for a disease that is no longer at epidemic proportions, but refuses to allow a targeted and effective remedy to currently infected areas. Thus, a majority of the justices, without doubt, believe that the “current conditions” of fewer disparities in voter registration, for example, merit the removal of all life sustaining legislation.
We’ve seen this before. In 1883, the Supreme Court found that the Civil Rights Act of 1875, which sought to make former slaves full and equal citizens, was unconstitutional. This marked a turning point in becoming a nation where all men were truly created equal. In less than 20 years after passage of the Fifteenth Amendment, the last African American left Congress after states implemented barriers to the franchise, such as literacy tests, grandfather clauses, and felon disenfranchisement laws. It would take seventy years before an African American would return to Congress from a former Confederate state and almost a century from the passage of the Fifteenth Amendment before Congress would provide the nation with tools to combat massive and violent disenfranchisement in passing the 1965 Voting Rights Act.
Have conditions changed since 1965? Absolutely! No more segregated lunch counters, water fountains, Bull Connor in the courthouse door. Does discrimination in voting continue to exist? Absolutely! The Court admits that fact, but decides that a state’s right to be treated equally instead of a citizen’s right to equal treatment is supreme.
Now what? I have previously written and advocated that when elected bodies propose changes that affect the right to vote, a Voter Impact Statement (VIS) should accompany such actions. These statements would serve as a fitting first step to restore Section 4. Congress should require elected bodies to submit a (VIS) to the Department of Justice when proposing measures that affect the right to vote. The VIS should contain the following information:
Purpose and Need. A VIS would explain the underlying purpose for the change. For instance, a legislature proposing new voter ID requirements would have to establish the need for the legislation. If it is needed to combat fraud, then the VIS should explain how the legislation would combat fraud without impinging on voters’ rights or access to the polls. .
List Alternatives. A VIS would require a reporting of options considered and a description of the type of evidence or study the jurisdiction utilized in arriving at the proposal and an explanation for eliminated plans. For example, in the voter ID context, election officials could explain why they rejected other proposals and discuss alternatives that could increase voter access by providing free photo identification, mobile units to distribute voter IDs, election-day registration, etc.
Public Comment. The DOJ should require jurisdictions to file the VIS in Washington, DC and allow at least a 30 day period for public comment, before the measure could receive legislative consideration.
The adoption of Voter Impact Statements would increase voter confidence and participation in the political process and potentially reduce litigation costs. Well-developed voting legislation that seriously considers the purpose and need for voting changes considers viable alternatives and includes community involvement, strengthens our democracy. To be effective, Congress would have to include the power for DOJ to enforce submission of the statements and penalties for jurisdictions that don’t comply.
The country cannot wait almost a century, as it did between the passage of the Fifteenth Amendment and the 1965 Voting Rights Act, before Congress realizes that action is needed to protect the democratic process, election integrity and access to the ballot. Some jurisdictions almost immediately decided to move forward with plans to implement voter id laws that courts found intentionally discriminatory. Congress must act quickly to stop the bleeding. Section 5 is on life support and Congress is the only entity authorized to resuscitate.