Last week, a federal district court heard arguments in a case brought by Shelby County, Ala., challenging the constitutionality of significant parts of the Voting Rights Act of 1965. The case may reshape American politics.
At issue is the law requiring the attorney general to approve every single change touching on elections in some but not all states. Little-noticed behavior of the Justice Department makes it more likely the U.S. Supreme Court could invalidate the 45-year-old law, assuming the high court is aware of the offending behavior.
Section 5 forces nine states and parts of seven others to submit every electoral change to the Justice Department for approval. For example, in New York, it covers Brooklyn but not Queens. If a polling place moves 50 feet in Brooklyn, Washington must approve. Redistricting plans in 16 states also must obtain federal approval if Section 5 survives.
Section 5 borders the farthest constitutional frontier of federal power. Which side of the limit it sits on will be decided shortly by the Supreme Court.
The case will turn on whether the circumstances that existed when Section 5 passed still give constitutional warrant to federal regulation of state elections. Section 5 was meant to be an emergency provision, allowed to last just five years and intended to block any backsliding toward racial discrimination in voting.
The week the law was signed, the Cincinnati Royals played in the National Basketball Association, “Help Me, Rhonda” by the Beach Boys topped the charts, and “My Fair Lady” had just won the best-picture Oscar. Obviously, much has changed.
Eric H. Holder Jr.’s Justice Department has become notorious for enforcing election laws with a racial double standard. From the corrupt dismissal of the New Black Panther voter-intimidation case to the refusal to enforce voter integrity laws, Mr. Holder’s tenure has been politicized and race-based.
The Supreme Court may be surprised to learn that the Justice Department refuses to conduct any analysis under Section 5 when the racial minority is white, as is the case in many towns and counties covered by Section 5.
This failure to enforce the law equally is not simply a theoretical problem. There are real victims.
During the George W. Bush years, the department brought and won a discrimination case in rural Noxubee County, Miss., against a black official who used fraud and lawlessness to discriminate against the white minority. Yet when a submission under Section 5 was made by this same wrongdoer to facilitate continued discrimination in 2010, the Holder Justice Department didn’t even review the discriminatory proposal under Section 5.
Why not? Because Mr. Holder’s Justice Department believes as a matter of policy that its resources should not be used to enforce Section 5 on behalf of white victims.
There is visceral ideological opposition to equal application of Section 5. This unapologetic, unequal enforcement of the law means Justice is unconstitutionally applying Section 5 when changes are submitted affecting a white minority, even in places where discrimination has been found in the past.
The current Shelby County case is only a facial constitutional challenge, not one that burrows into the deep undiscovered corners of the law’s application. That may change very soon.
South Carolina lawyer Larry Kobrovsky is preparing another constitutional challenge to Section 5 to attack how the law is applied inside Justice. “Charleston County just elected [black Republican] Tim Scott to Congress. Section 5 might be needed more in Ohio than in South Carolina these days,” he says. “The Justice Department isn’t applying the law equally, and I hope to use discovery to get these facts before the Supreme Court.”
Mr. Kobrovsky also will challenge the internal standards Justice uses to conduct a Section 5 analysis.
Mr. Kobrovsky is a seasoned veteran in the battles to enforce race neutrality. He successfully sued a school district for creating a racially hostile atmosphere for a white teacher.
When the last challenge to Section 5 reached the Supreme Court in 2009, a unanimous court warned that the law was constitutionally suspect, but it never decided the question and instead allowed the plaintiff to “bail out” from Section 5.
Bailout applications are a constitutional steam valve, allowing places with clean records to terminate Section 5 oversight.
But the Justice Department is entering into bailouts that aren’t genuine bailouts by attaching needless strings to the accompanying consent decrees in an effort to placate civil rights groups. The department argued in court that bailouts are effective, but it avoids mention of the burdensome and lawless obligations it demands of bailed-out jurisdictions. The Supreme Court should take a peek at the actual bailouts Justice is negotiating.
If the Holder Justice Department wants to bolster the constitutionality of Section 5, it should discontinue the discriminatory practice of protecting some racial minorities but not all. If it doesn’t, plaintiffs have a new and tempting target with which to attack Section 5.
Mr. Holder also should end the ruse of telling the courts that bailouts help preserve the constitutionality of Section 5 when the approved bailouts are phony and partial. Otherwise, after the Supreme Court strikes down Section 5, Mr. Holder may share some of the blame.
J. Christian Adams is an election lawyer and former Justice Department voting rights attorney.