by Jeremy Leaming
Alabama officials will take to the U.S. Supreme Court on Feb. 27 to try to gut the Voting Rights Act’s integral enforcement provision, Section 5. And their argument, what the Constitutional Accountability Center’s Simon Lazarus calls the “goofy gripe,” rests largely on the claims that racial discrimination in voting happens everywhere and so why pick on certain states.
Lazarus notes, however, that just last year the Voting Rights prime enforcement provision was employed by the Justice Department to scuttle “vote suppression techniques familiar to all who followed the 2012 campaign: stringent voter ID laws, curtailed early voting opportunities, and discriminatorily rigged redistricting plans.”
But the Alabama officials’ arguments are more than goofy, they’re ludicrous. There’s a reason why Section 5 remains relevant, because tawdry, bigoted attempts to deny minorities the right to vote remain the most intense in specific states and localities.
First let’s start with some basics. The Constitution’s Fourteenth and Fifteenth Amendments bar the states from depriving citizens of liberty and from denying the right to vote to minorities. Moreover, both amendments include sections granting Congress, not the courts, the power to craft appropriate legislation to enforce the promise of both Amendments.
When Congress enacted the Voting Rights Act it determined that some states and localities, mostly in the South, had much deeper and more intense histories of oppressing African Americans, including keeping them away from the polls. So Congress included a rather strong enforcement mechanism, Section 5, which would require those covered jurisdictions to obtain “preclearance” for any changes to their voting procedures from the Department of Justice or a federal court in Washington, D.C. In 2006 Congress in bipartisan fashion overwhelmingly reauthorized Section 5 for another 25 years, after amassing a voluminous record showing that the covered jurisdictions by far remained the most fertile ground for racial discrimination in voting. The evidence was that although progress had been made in the South, there remained a stubborn bigotry resulting in ongoing efforts to suppress the minority vote.
During an ACS panel discussion this week on the case challenging Section 5, Shelby County v. Holder, several panelists noted stories from Texas, Alabama and other covered jurisdictions of “serial” efforts to suppress or dilute the vote of minorities. For example in 2008 Alabama officials, as NAACP LDF’s Ryan P. Haygood recounted, sought to implement a discriminatory redistricting plan to drastically reduce the sole majority black district in the state by creating hundreds of annexations, without obtaining preclearance. When the Justice Department did review the redistricting plan, it was rejected as discriminatory. Nonetheless the officials held the election with the discriminatory redistricting scheme and the DOJ lodged a Section 5 enforcement action undoing the election and requiring another election to be held. (LDF is representing voters in Alabama in the Shelby County case; for more on Section 5 and Shelby County see ACS’s Voting Rights Resources page.) Video of panel discussion is below or here.
In a 2011 federal court opinion, Haygood noted that the court “recognized the persistence of racially polarized voting in Alabama, and found ‘that purposeful discrimination by Alabama lawmakers persists to the present day.’” The evidence in this case, which dealt with a referendum for the 2010 ballot thought to decrease minority turnout, showed that Alabama lawmakers were caught on tape referring to blacks as ‘illiterates,’ and ‘aborigines.’”
The court in that 2011 case noted that “political exclusion through racism remains a real and enduring problem in this state.’”
Nina Perales of MALDEF said that Section 5 applies to Arizona and Texas because they “perfected the art of gamesmanship.” For example, Texas lawmakers are constantly reenacting new schemes to evade Section 5. Since Section 5 was extended to Texas in 1975, in every round of redistricting, at least one statewide redistricting plan was invalidated as discriminatory.
“Honestly, I think if Texas was a person it would probably be diagnosed with having a compulsive disorder when it comes to disenfranchising Latinos and others in redistricting,” Perales said. Indeed in 2006 the Supreme Court invalidated a Texas congressional redistricting plan for discriminating against Latinos. There was one district that was on the “cusp of electing a Latino candidate of choice, so Texas removed 120,000 Latinos from the district so that it could not elect a Latino candidate of choice.” Perales noted that Justice Anthony Kennedy wrote in the case that Texas had yanked the right to vote from Latinos just as they were about to exercise it.
Will the Supreme Court now buy the Alabama officials claims that Section 5 is an unnecessary cudgel used to infringe state sovereignty? Hopefully the justices will pay closer attention to what is at stake this time around. There are numerous federal judges who have acknowledged that the job of Section 5 is not completed; that racial discrimination in voting is still the most intense and invidious in the covered jurisdictions. If the justices can show judicial restraint instead of activism they won’t buy the wobbly and delusional arguments that all is normal in the states and localities covered by Section 5.