The Supreme Court granted review last week in Shelby County v. Holder, a case challenging the constitutionality of Section 5 of the Voting Rights Act.
This is an important case because Section 5 is one of the key provisions of the act. It requires many state and local governments — primarily but not exclusively in the South — to get permission from the federal government before making changes in any voting-related practice or procedure.
This includes everything from moving a polling place from an elementary school to the junior high school across the street, to statewide redistricting plans, to voter ID laws and whether party affiliation is listed on a ballot.
Section 5 was part of the original 1965 Voting Rights Act and at the time was necessary to safeguard the rights of black voters. Southern officials were very clever in keeping one step ahead of the Justice Department in changing laws and procedures in ways that kept blacks from voting. Section 5 solved this problem by saying that no changes could be made without getting “preclearance” first from the federal government. So far so good, and early challenges to the act were rejected by the courts.
Times have changed, however, but — for political reasons alone — Section 5 has not. There are several problems with Section 5. It raises serious federalism concerns by requiring state and local officials to get federal preapproval for practices and procedures that are fundamental to any government’s sovereignty. It also discriminates by requiring some state and local governments to seek such preclearance but not others.
This could be justified in 1965, but Congress had no warrant or factual basis in 2006 to extend Section 5 mechanically for another 25 years. Congress did not revisit the jurisdictions it covered, and the fact is that the distinctions between the South and the rest of the country have diminished dramatically, if not effectively vanished.
What’s more, in 2006, Congress not only extended Section 5 without changing its coverage, but also expanded it in ways that further undermine its constitutionality. In 2009, the court unanimously signaled Congress in another case that there were problems with the current statute, but Congress has ignored that warning.
Here’s perhaps the most serious problem of all with Section 5: It prohibits not only voting changes that have a discriminatory purpose, but also those that have a disproportionate “effect.” So, for example, a voter ID requirement can be blocked even if it is nondiscriminatory in its terms, application and intent — so long as a federal bureaucrat thinks it might be more likely statistically that members of one racial group versus another will not have the needed identification.
As a result of the “effects” test, the principal use of Section 5 is not to stop discrimination and not to challenge anything remotely relevant to people going to the voting booth. Rather, the principal use federal civil rights officials now make of Section 5 is to require racially gerrymandered and racially segregated voting districts. The purported reason is that racial minorities are entitled to have a proportionate number of districts carved out in which they are the majority.
So Section 5 now guarantees districts that are less competitive and more polarized, not only racially but ideologically. It insulates Republican candidates and incumbents from minority voters and from issues of particular interest to them. Conversely, the insulation of minority candidates and incumbents from white voters makes it less likely that those politicians eventually will be elected to statewide positions. In sum, Section 5 encourages racial balkanization and identity politics.
The left no doubt will cry that the Supreme Court of Chief Justice John G. Roberts Jr. is poised to “turn back the clock” on civil rights: It already has heard a case this term that calls into question the use of racial preferences in university admissions, and now it will be hearing another case that calls into question a statute that empowers federal bureaucrats to insist on a politically correct number of “majority minority” districts.
Listen to that and then think about how far from the ideals of the civil rights movement the left’s definition of civil rights has led us. Universities must be able to discriminate against students on the basis of skin color, and voters must be required to vote only among those of their own kind.
Roger Clegg is president of the Center for Equal Opportunity (CEO). Joshua P. Thompson is an attorney with Pacific Legal Foundation (PLF). CEO joined an amicus brief filed by PLF, urging the Supreme Court to grant review in the Shelby County case.