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.
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.
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.