- The Washington Times - Monday, May 4, 2009

ANALYSIS/OPINION:

COMMENTARY:

Is it still 1965 on your calendar? Is your television set still black and white, with rabbit-ear antennae? If the answers are “No,” why does Congress still think it is 1965 in the mostly Southern states that are subject to Section 5 of the Voting Rights Act?

That provision, a 44-year-old emergency law, requires the covered jurisdictions to get permission from the Department of Justice before moving a polling place, changing their voting laws to comply with new federal laws or making any other change to their laws and practices related to voting.

Last Wednesday, the Supreme Court considered a challenge to the 2006 extension of Section 5 to the year 2031, at which time the “emergency” will be 66 years old. A Texas Municipal Utility District says that extension is unconstitutional, and some of those who disagree suggest - without evidence - that only Section 5 keeps the South from the return of segregation and discriminatory voting laws.

Not only the calendar has changed. The Southern states and their people have, too. No one can credibly assert that we would see a return to the days of fire hoses and police dogs. The rest of the Voting Rights Act would remain in place. Further, unlike in 1965, blacks vote and are represented in state legislatures and local governments. Similarly, a new generation of Southerners would not want to return to federal oversight if Section 5 were set aside.

Even without Section 5, the Voting Rights Act still will prohibit discrimination in voting. Section 4 of the act bars Southerners from using literacy tests, grandfather clauses and other such tests or devices even if they want to. Moreover, the permanent prohibition on the use of tests or devices as barriers to voter registration has had dramatic results.

In Mississippi, the registration rate for black voters increased from 6.7 percent in 1965 to 76.2 percent in 2004. Further, while the black registration rate trailed the white registration rate by 63.2 points in 1964, it exceeded the white registration rate in 2004. The statistics for Georgia and Alabama are similar.

The dramatic increase in black voter registration and participation has two effects. First, those voters cherish their votes and would complain loudly if anyone tried to take them away. Second, in conjunction with the law that relates to redistricting, those voters have been able to participate in choosing who represents them.

Black voting has produced substantial black representation. In Alabama - with a black population that is about 26 percent of the state’s total population - each house in the Legislature has a roughly proportional number of blacks. The Alabama Senate has eight black members out of 35, and the Alabama House of Representatives has 27 black members out of 105. The black members are part of Democratic majorities, and their votes are essential to the Democratic Party. The blacks generally are strong enough to block legislation they oppose.

Between voters who cherish their votes and legislators who protect their interests, the black community in the covered jurisdictions has substantial protection from attempts to discriminate. Their voting and representational strength make it highly unlikely that discriminatory voting laws will again be enacted.

That is one side of the equation. The other side is the Southern states and other covered jurisdictions that have chafed under extraordinary federal control for 44 years. Those jurisdictions have made dramatic changes in their voting practices, and significant improvements have followed. Their rates of voter registration and participation and minority representation are better today than those in other parts of the country that are not subject to Section 5. Nevertheless, Congress made no effort to make sure that relief originally tailored to conditions in 1965 was retailored to conditions in 2006.

If Section 5 went away, the Southern states and other jurisdictions that enjoyed its coverage would not want it back and could be expected to behave accordingly. The suggestion that the prospect of Section 5 review keeps the covered jurisdictions from doing bad things is, as Chief Justice John G. Roberts Jr. pointed out, like the “elephant whistle. I have this whistle to keep away the elephants. … Well, there are no elephants, so it must work.” Having just shed the burden, and knowing why it was placed on them, the covered jurisdictions are not likely to misbehave.

In the end, if Section 5 went away, the covered jurisdictions would be put to the test. Behave, or Congress can respond to renewed misconduct with new legislation. Unlike in 2006, however, Congress would no longer be relying on 1965 data to justify its action. Those results are too old, and the rabbit-ear antennae are outdated, too.

Jack Park is a former assistant attorney general of Alabama. He is the special assistant to the inspector general for the Corporation for National and Community Service. The views expressed in this article are his own.

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