Voting Rights Act debate

Moderated by Tom Sabulis

The Supreme Court will hear arguments Wednesday involving the “preclearance” provision (Section 5) in the Voting Rights Act, which says nine states and certain areas in seven others must get federal approval before changing election procedures. Most of the affected governments are in the South. Two local law school professors look at the legal challenge.

Commenting is open below Rob Teilhet’s column.

Outdated Section 5 stokes partisan fire

By David Oedel

The Voting Rights Act pushed the South to grow beyond slavery and Jim Crow by helping ensure that every citizen has a fair chance to vote. But can Georgia still be relegated constitutionally to the voting-violator doghouse? If so, does Section 5 violate other constitutional guarantees, souring Georgia politics with racial preoccupations?

The Supreme Court is now pondering Section 5 of the Voting Rights Act. Despite its 2006 reauthorization, Section 5 still singles out Georgia and eight other mostly-Southern states as voting-rights bad boys based on evidence of them having undercut the voting rights of minorities decades ago. Yet the nine covered states today typically have better minority-voter registration and turnout than non-covered states.

Georgia and most states covered by Section 5 filed briefs with the Supreme Court objecting that they’re being legally branded as presumptive racists. They argue that Section 5 strictures are disproportionate and incongruent to more relevant, recent history.

Georgia’s legislator-politicians aren’t above racial gamesmanship, as they showed recently in moving Augusta’s local elections from November to July, with obvious negative implications for Democratic racial minority turnout and voting influence. That change was properly rejected by the U.S. Justice Department under Section 5. Yet that proposal could also have been thrown out under Section 2, part of the Voting Rights Act that will survive no matter what’s decided about Section 5.

Section 5 requires mechanistic comparisons of minority voter share before and after any voting system change, rendering unlawful as little as a 0.2 percent decline in minority voting share. As those involved in redistricting can warrant, Section 5 elevates racially fixated computer programs to king-like status. It looks and feels like an intentional violation of the Equal Protection Clause.

Section 5’s calculus adds fuel to the partisan fire, resulting in some districts in covered states becoming overwhelmingly minority-centric, while other districts are left without significant minority influence. In Georgia, it perversely facilitates a new political segregation, helping ghettoize an increasingly irrelevant Democrat party.

Is that really what Andrew Young and John Lewis fought for — seats at an empty table?

Section 5 forces state legislators and their federal overseers to be ever-more-acutely sensitive to race, rather than rising above it. Section 2 also outlaws voting-rule discrimination, but not mechanistically. Section 2 prohibits changes that will deprive any group of a fair chance to elect their preferred representatives.

Sometime after the Supreme Court hears oral arguments on Wednesday, Section 5 will likely be found unconstitutional. First, Section 5 isn’t justified by the relevant recent history of discrimination in the covered states. Second, it’s wrong to hold similar states to different standards, and not give citizens in uncovered states similar protections. Third, it’s unconstitutional to treat all voters as if their color counts more than anything else.

David Oedel teaches constitutional law at Mercer University Law School and serves as legal counsel to senior officials of both major political parties.

Our election politics: Present just like past

By Rob Teilhet

The great Mississippi novelist William Faulkner once wrote of the South that “the past is never dead. It’s not even past.” This term, we will find out if the Supreme Court of the United States agrees.

Prior to the Voting Rights Act, voter suppression and intimidation were widespread and institutional. Schemes designed to keep African-Americans from voting were commonplace and barely disguised — usually in the form of a poll tax, literacy test or grandfather clause. In 1965, Congress passed the Voting Rights Act, designed to outlaw discriminatory voting practices that had led to the widespread disenfranchisement of African-Americans. In 2006, the law was renewed by a vote of 98-0 in the United States Senate and 390-33 in the House of Representatives (both operating under Republican majorities) and signed by President George W. Bush.

A key provision of the law, Section 5, requires “preclearance” of any attempt to change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” in any “covered jurisdiction.” Nine states including Georgia and cities or counties in an additional seven states are covered by preclearance requirements based on their history of discrimination and voter disenfranchisement. If a covered jurisdiction wishes to change requirements relating to voting or redraw districts, it must demonstrate that the proposed change does not have the purpose and will not have the effect of discriminating based on race.

Now, this preclearance requirement is being challenged. Opponents say things have changed in the South. Sufficient progress has been made on matters of race that preclearance requirements are no longer necessary. Is that so?

President Bush and a broad, bipartisan coalition in the 2006 Congress didn’t think so. In the 25-year extension of the Voting Rights Act passed that year, the preclearance requirements could have been revised or discontinued. They were kept in place.

It is beyond reasonable dispute that race continues to dominate politics in the South. In just the past decade, we watched as the removal of the Confederate battle emblem from the state flag realigned Georgia’s politics.

In Florida, after early voting yielded record minority turnout in 2008, the legislature cut back on its availability for the 2012 election leading to a meltdown this past November in which voters waited in line for seven hours to vote in some locations. And in our neighbor state of Alabama, court testimony outlined a recent municipal election in which white men stood outside polling places and photographed black voters coming and going from the polls. In the same municipality just last year, an elderly African-American was able to successfully challenge his removal from the voter rolls only because the improper removal had not been submitted for preclearance.

It is true that the South has made progress on the issue of race.  Someday, Faulkner will be wrong to say that the past is not past. Sadly, that day is not today.

Rob Teilhet, a former state representative, is adjunct professor at the University of Georgia School of Law.

18 comments Add your comment

Bernie

February 26th, 2013
12:52 pm

GB101 @ 10:05 am – You are being betrayed by your own words. All one needs to do is to review the past history of voting in the south, coupled with what has happened in the last Presidential election. you will find that Nothing too much has really changed.

zeke

February 26th, 2013
12:46 pm

No matter how you look at it the voting rights act is not Constitutional! It violates the “equal protection” clause! The only way it could possibly be Constitutional is that it applies to every state. county, city, town or district! The Supreme Court should toss it!

dzach01

February 26th, 2013
12:29 pm

nothing has changed, just read the comments.

williebkind

February 26th, 2013
12:19 pm

“Obviously Georgia still has racial issues, the extent of which can be debated.”

Lets go to Maryland and we can have the same debate.

williebkind

February 26th, 2013
12:18 pm

“It really doesn’t really matter what we think. The activist conservatives on the SCOTUS will vote it down anyway!”

Are you ignorant? You have the liberal Roberts who voted in Obama Care. You liberals sure do forget quickly when a traitor turns tails.

Matt321

February 26th, 2013
12:06 pm

Obviously Georgia still has racial issues, the extent of which can be debated. However, how relevant is it at this point what happened in the 1960’s? The legislators and governors responsible for those horrid policies are long gone. The voters who cheered on those policies (the Greatest Generation lol) are also now passing. In 1960, there were 4 million people living in Georgia. Today, there are almost ten million. Only about 10% of those are 65 and older – that means that, even if every elderly Georgia here today lived in Georgia in 1960 (obviously not true), at most less than 10% of Georgians today were even here and old enough to vote back in 1960.

I did not come here to damn the racist history of Georgia, but to bury it. Preclearance’s time has come. Even more so, it is time to get rid of the crazy district apportioning scheme that has crammed minorities into districts to dilute their overall voting strength. Not only does it hurt minority political strength, it also makes drawing every other district more difficult, making other districts less likely to represent contiguous, compact areas that make up natural population centers.

GB101

February 26th, 2013
10:05 am

Bernie

You are an ignorant bigot. It’s in their DNA? Maybe you don’t know what DNA is.

xxx

February 26th, 2013
10:03 am

If a voting precinct floods, 9 states have to get federal approval to move to a dry building across the street under the preclearance provision of rule 5 while the other 45 simply move and continue with minimal disruption. I think most agree that is just stupid was never an intended consequence. There has to be a happy meduim that protects the spirit of the law yet removes the strangehold of having to petition the federal court at taxpayers expense for harmless things.