Something is wrong when a law passed 43 years ago to fight discrimination against black Americans is used now to harass local governments with no history of racial discrimination, upset the constitutional balance, and add tremendous expense to the elections process – especially when it arguably harms the interests of black voters more than it helps.
A small Texas subdivision of 3,500 people is asking the U.S. Supreme Court to hear a case arguing that Section 5 of the Voting Rights Act of 1965 is unconstitutional. By right, by justice, and by the Constitution itself, the subdivision ought to prevail.
Section 5 requires any jurisdiction within nine states (mostly those of the old Confederacy) and portions of seven others to seek “pre-clearance” from the U.S. Department of Justice (DOJ) for any change in any election law or procedure. Even if a polling place is moved from a school gym to the same school’s cafeteria, DOJ must approve it.
The pre-clearance requirement is an administrative hassle. Stories abound of local governments experiencing severe delays in election preparations while awaiting DOJ action on even the most minor issues.
What’s worse is that Section 5, in conjunction with other parts of the Voting Rights Act, has been used to freeze in place some obscene examples of racial gerrymandering. At one point it might have made sense to create majority black (or Hispanic) districts to ensure that at least some black (or Hispanic) candidates would be elected.
But by systematically pushing more and more black voters into these “majority-minority” districts, legislators reduce the numbers (and thus the influence) of black voters in adjoining districts – making their elected representatives less likely, not more, to pay attention to concerns of the minority community.
Enter the small Texas entity. In Northwest Austin Municipal Utility District Number One v. Gonzales, the plaintiffs are asking either to be exempted from the pre-clearance requirement or, even better, for Section 5 itself to be declared unconstitutional.
When the Voting Rights Act became law, Section 5 was supposed to last just five years. It was intended as an extraordinary step to keep recalcitrant southern states from using inventive new ways to counter every new effort to secure black voting rights. It was renewed first for 10 years, then for another 25 years, and then again in 2006 for another quarter-century.
But here’s the problem: Pre-clearance gives the federal government veto authority over a responsibility, elections, that the Constitution unambiguously designed as a state prerogative.
The Supreme Court has ruled in other cases that this constitutional design can be ignored only for emergency purposes to remedy another constitutional wrong – and that Congress must “identify” exactly what “conduct” is harmful enough to require the otherwise unconstitutional remedy.
But in 2006, Congress did not build substantial evidence that the covered jurisdictions were still involved in legal shenanigans to put obstacles in the way of black voting. Indeed, as the plaintiffs note, “in many covered jurisdictions, minority registration and turnout rates exceed both national averages and rates for white citizens.”
In short, Section 5 is a remedy for a nonexistent problem – like taking debilitating chemotherapy for a cancer that has been in remission for decades.
Or, in the case of this small Texas utility district founded in the late 1980s, it’s like taking chemo for cancer that never existed at all. Plaintiffs note that “through its entire history, nobody has ever complained about or questioned voting or election procedures used by the district.” Not even once.
Indeed, the whole state of Texas was included among the “pre-clearance” states not because of discrimination against blacks, but because of a lack of Spanish-language election materials – a problem fixed in the early 1970s statewide, a full decade and a half before the North Austin utility district even came into being.
The entire pre-clearance requirement amounts to holding all covered jurisdictions guilty until proven innocent – thus turning American tradition on its head. The Supreme Court should agree to hear this case, and then to outlaw Section 5, so as to turn the constitutional order right-side up once gain.
Quin Hillyer is associate editorial page editor of The Washington Examiner. He can be reached at [email protected].
