by Edward A. Hailes, Jr. is Managing Director and General Counsel for Advancement Project. He formerly served as the General Counsel for the U. S. Commission on Civil Rights where he directed its investigation into voting irregularities in Florida during the 2000 presidential election. This post is part of an ACSblog symposium on Shelby County v. Holder.
In 2006, the United States Congress reauthorized the Voting Rights Act of 1965 putting certain jurisdictions under the microscope once again to determine whether those jurisdictions were fully cured from the infection of past and present discriminatory voting practices. These ugly practices prevented and continue to prevent ordinary citizens of color from having equal access in our democracy. Congress conducted similar examinations in 1970, 1975, and 1982, each time determining, on a bipartisan basis that protecting the rights of voters in these jurisdictions required ongoing scrutiny and action.
The 2006 examination was particularly extensive and illuminating. The record of review entailed 15,000 pages and testimony from more than 50 witnesses who examined the body of evidence from both sides of the issue. Based on this thorough, objective review, Congress concluded that, despite progress toward achieving political equality for minority voters in the covered jurisdictions, “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th Amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” Congress also found that without continuation of Section 5 [which is the very heart of the Voting Rights Act] voters of color “will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.”
Officials from Shelby County, a largely white suburb of Birmingham Alabama, decided to seek a second opinion. They filed a claim in the U. S. District Court for the District of Columbia, disputing the Congressional diagnosis and claiming Congress was not authorized to prescribe periodic, proactive reviews of the voting practices of covered jurisdictions in the first place. Stating that Congress was not authorized to review the case is akin to saying a surgeon is not capable of a post-operative check-up.
Nevertheless, the district court gave a second opinion, confirming Congress’ constitutional authority to make these determinations and concluding that Congress acted appropriately in 2006 when it reauthorized the Voting Rights Act. Shelby County officials decided to seek a third opinion; this time disputing the factual conclusions of Congress and the legal conclusions in the district court in going to the U.S. Court of Appeals for the District of Columbia. This court likewise affirmed the authority and findings of Congress, summarizing its decision as follows:
Congress drew reasonable conclusions from the extensive evidence it gathered and acted pursuant to the Fourteenth and Fifteenth Amendments, which entrust Congress with ensuring the right to vote – surely among the most important guarantees of political liberty in the Constitution – is not abridged on account of race. In this context, we owe much deference to the considered judgment of the People’s elected represented.
Shelby County officials now want a fourth opinion. It will be a final opinion from the U. S. Supreme Court. The Court must accord due deference to Congress in these matters, as required by the Constitution. It must refrain from second-guessing and substituting its judgment for congressional review and expertise in diagnosing ongoing risks of unequal access to voting in covered jurisdictions.
Congress was deeply acquainted with the full record of the family history of voting discrimination in covered jurisdictions. Congress determined that special scrutiny was still required in those jurisdictions. The bottom line is simple: the Voting Rights Act’s preclearance provision is still needed. Citizens of color in jurisdictions with a family history of discriminatory voting practices need protection from modern politicians who mimic that history with attempts to manipulate elections with discriminatory schemes and devices for partisan gain. Section 5 works because officials are compelled to address the warning signs of discrimination before the body politic is fully infected. The Supreme Court must affirm and confirm the diagnosis of Congress that the reauthorization of the Voting Rights Act is an ongoing prescription for a healthy democracy.