Voting Commission a Worthy Idea, but VRA Remains Vital to Combating Discrimination

February 13, 2013

by Jeremy Leaming

In a State of the Union Address largely focused on economic policy aimed at helping the middle class as opposed to measures long trumpeted by conservative lawmakers that coddle the superrich, President Obama also highlighted the unequal effects that too many state laws had on voting last year. As The New York Times recently reported, African Americans and Latinos “waited nearly twice as long to vote as whites, according to a study conducted by the Massachusetts Institute for Technology.”

Obama called for a bipartisan commission, including his campaign lawyer Robert Bauer and Mitt Romney’s counsel Ben Ginsberg, to investigate the voting difficulties and irregularities of the 2012 election cycle.

That’s a commendable action, but we must not forget that the nation’s strongest law to combat racial discrimination in voting remains the Voting Rights Act of 1965, and especially its major enforcement provision, Section 5. Section 5 applies to certain states and localities with deep histories of discriminating against potential voters because of their race. And in 2006, Congress developed an exhaustive record showing that racial discrimination in voting still persisted and indeed remained most invidious in those jurisdictions. Section 2 of the Voting Rights Act provides citizens nationwide with the ability to challenge discriminatory practices wherever they occur.

But Section 5 is the bulwark against those state officials bent on creating ways to keep minorities away from the polls. Indeed, the Department of Justice and several civil liberties groups relied on Section 5 to halt or blunt efforts in Texas, South Carolina and Florida (all covered by Section 5) that would have disproportionately impacted the minority vote.

While Section 5 is integral to the Voting Rights Act, it is also despised by some state officials in the covered jurisdictions. Alabama officials are urging the U.S. Supreme Court to invalidate Section 5, arguing in part that racial discrimination in voting is largely a relic. The high court will hear oral argument in the case, Shelby County v. Holder on Feb. 27 and is expected to issue a ruling in late spring or early summer. (For more information about the Voting Rights Act and the Shelby County case see ACS’s Voting Rights Act Resource Page.)

The NAACP Legal Defense & Educational Fund (LDF) is representing some voters in Alabama arguing that officials there ignore the evidence of ongoing racial discrimination in voting and that now is not the time to gut one of this nation’s greatest civil rights laws. A bipartisan group of House Judiciary Committee members who helped lead the way for the 2006 reauthorization of the Voting Rights Act has lodged a friend-of-the-court brief in the Shelby County case arguing that the Constitution -- especially the 14th and 15th Amendments -- protects liberty and bars racial discrimination in voting. Both those amendments, the brief continues, provides Congress the power to craft appropriate legislation to ensure the promise of those amendments. (For an examination of the 15th Amendment see research prepared by staff of the Constitutional Sources Project or ConSource and research fellows at Harvard Law School. ConSource is a nonpartisan group devoted to increasing understanding and enriching discussion of the Constitution.)

The 2006 record of reauthorization, the House group’s brief states, “left no doubt that widespread voting discrimination persists in covered jurisdictions.” It concludes that the Supreme Court must show judicial restraint and not scuttle a law that Congress only a few years ago determined is still very much needed. Indeed the reauthorization extended the Voting Rights Act for another 25 years.

In a piece for Slate, “Voting Rights 2.0,” Emily Bazelon also concludes the high court should show restraint.

“While the South has come a long way from the racism of the ‘60s,” Bazelon wrote. “I don’t think it’s the Supreme Court’s job to take away a protection for minority voters Congress reaffirmed only six years ago.”