Moderated by Rick Badie
Tuesday’s U.S. Supreme Court decision on the Voting Rights Act quickly drew praise and criticism. Georgia is one of the Southern states that had been covered by the act’s “preclearance” requirement, that changes in voting processes be approved by the U.S. Justice Department. Today, columnist George Will says the act has largely outlived its usefulness, while a Georgia state representative contends it is still very much needed.
A noble law was past its time
By George Will
“But history did not end in 1965.” — Chief Justice John Roberts on Tuesday
WASHINGTON — Progressives resent progress when it renders anachronistic once-valid reasons for enlarging the federal government’s supervisory and coercive powers. Hence they regret Tuesday’s Supreme Court ruling that progress has rendered Section 4 of the 1965 Voting Rights Act unconstitutional.
This section stipulates the formula by which nine states and some jurisdictions in others are brought under Section 5, which requires them to get federal permission — “preclearance” — for even the most minor changes in voting procedures. The 15th Amendment empowers Congress to enforce with “appropriate legislation” the right to vote. Sections 4 and 5 were appropriate 48 years ago, when the preclearance provisions were enacted for five years. They have been extended four times, most recently in 2006 for 25 years.
The VRA is the noblest legislation in American history, more transformative than the 1862 Homestead Act, the 1862 Morrill Act (land-grant colleges) or the 1944 GI Bill of Rights. But extraordinary laws that once were constitutional, in spite of being discordant with the nation’s constitutional architecture, can become unconstitutional when facts that made the law appropriate change.
The most recent data, such as registration and voting rates, on which Section 4 is based, are from 1972. The data would have been 59 years old when the most recent extension would have expired in 2031. Tuesday’s decision prevents this absurdity that Congress embraced.
In 2009, in a case in which the court chose not to rule on the continuing constitutionality of the VRA’s formula, the court — Chief Justice Roberts writing for the majority — clearly challenged Congress to update the VRA because it “imposes current burdens and must be justified by current needs.” On Tuesday, Roberts tersely said Section 4 is “based on decades-old data and eradicated practices.”
The 2006 extension was passed by votes of 390-33 and 98-0 in the House and Senate, respectively. Justice Antonin Scalia suggested during February’s oral argument that these numbers indicated not conviction based on reflection about continuing necessities but rather the reluctance of risk-averse legislators to vote against something with the “wonderful” name Voting Rights Act. Scalia should have cited the actual name of the 2006 extension: the “Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act.”
It is anti-constitutional to argue that it would have been admirable “restraint” for the court to respect Congress’ decision to extend all of the VRA — whether from conviction, cowardice or sloth — regardless of what the court has called the act’s “substantial federalism costs.”
Tuesday’s decision came nine years after a presidential election in which most of the states where higher portions of whites than blacks were registered were in states (e.g., Massachusetts) not covered by Section 5. The decision came eight months after a presidential election in which African-Americans voted at a higher rate than whites. It came when in a majority of the nine states covered by the preclearance requirements, blacks are registered at a higher rate than whites. It came when Mississippi has more black elected officials — not more per capita; more — than any other state.
The Supreme Court’s 1896 Plessy v. Ferguson decision affirming the constitutionality of racial segregation in separate but supposedly equal public accommodations rejected the idea that such segregation imposed a “badge of inferiority.” But of course it did, as the court acknowledged in its 1954 school desegregation ruling. And during oral argument in February, Justice Stephen Breyer suggested the VRA remains constitutional because it acknowledges the South’s continuing moral inferiority. He likened Southern racism to a dormant but still dangerous disease:
“Imagine a state has a plant disease, and in 1965 you can recognize the presence of that disease. … Now, it’s evolved. … But we know one thing: The disease is still there in the state.”
Breyer’s insinuation was that we “know” the covered jurisdictions remain uniquely diseased, or potentially so. Tuesday, Roberts’ response was that (in words from a prior court ruling) “the constitutional equality of the states is essential to the harmonious operation of the scheme upon which the Republic was organized.”
Section 5 is now a nullity because it lacks force absent a Section 4 formula for identifying covered jurisdictions, and today’s Congress will properly refuse to enact another stigmatizing formula. On Tuesday, however, the court paid the VRA the highest possible tribute by saying the act’s key provision is no longer constitutional because the act has changed pertinent facts that once made it so.
Top court holds power over Ga. democracy
By LaDawn B. Jones
It’s ironic that the U.S. Supreme Court will take up the “necessity” of Section 5 of the 1965 Voting Rights Act. Is the Supreme Court asking the correct question? Rather than ask, “Is it a ‘necessity?’” the court should ask, “Are there are enough checks and balances in place to avoid the prejudices that the Voting Rights Act was put in place to prevent?”
In the 1960s, the egregious acts aimed at reducing individual voting rights guaranteed by the 15th Amendment were far more obvious than they are in the new millennium — except in Georgia.
In 2013, Georgia, one of the states subject to U.S. Justice Department review of all government action that affects voting rights, has not one, but three separate challenges to minority voting rights. Republican leaders in Georgia are wasting no time in creating rules that will maintain their control.
In May, a U.S. District Court struck down the at-large voting policy of Fayette County. The court determined that the county’s process for electing county commissioners, school board members and board of elections members violates the Voting Rights Act. The county has until the end of June to propose new voting methods.
In Macon, there was a referendum asking voters if they wanted to move to all non-partisan elections for county positions. The voters overwhelmingly said “no.” Then, just months later, the Bibb County delegation, which became majority Republican after the 2010 Republican-led redistricting, passed hotly contested local legislation that would overturn the will of the voters. Elections were changed to nonpartisan. The Justice Department has halted the planned July elections and required the delegation to provide answers regarding the purpose of the change.
Some Democrats allege that this change is a way to prevent Republican leadership from losing ground in an area that is becoming increasingly Democratic. As such, Republicans who typically have an easier time fund-raising, can hide behind the nonpartisan elections to win Democratic votes based on name recognition, rather than political ideology.
In Atlanta, there is a different challenge to the voting changes. During the last redistricting process for Fulton County, a majority Republican body drew in four additional Republican House and Senate members into the Fulton County delegation. The new members may only have one parcel of land in the county, but by the rules of the legislature, they get a vote on all local delegation matters. One of those votes included the re-drawing of the Fulton County Commission districts.
Typically, county commissioners submit maps that are passed by their local delegates without question. This year, Fulton County Republican members outvoted the Democratic members. The new map and the legislation that joined it reduced at-large voting members from two to one for each voter, and drastically changed the district lines. A new district was drawn in the overwhelmingly white and Republican North Fulton. Conversely, the district sizes were reduced for the majority African-American and Democratic South Fulton and city of Atlanta commission seats. County Commissioners have posed a court challenge, alleging that these changes were created to disenfranchise minority voters.
Whatever the decisions of the Justice Department in each case, it is clear that, if in one year there are this many concerns for one state, then we may not have progressed as far as we would think from 1965. Georgia is one example that Section 5 is still needed.
LaDawn B. Jones, D-Atlanta, is an attorney serving in the Georgia House of Representatives.