The United States Supreme Court is holding a hearing this morning on the constitutionality of a part of the 1965 Voting Rights Act that, in effect, presumes a number of states, counties and municipal bodies to be guilty of racial discrimination based on evidence collected 40 to 48 years ago without any reference to current behavior.
By taking the case — Shelby County, Alabama, versus Attorney General Eric Holder, — the Supreme Court has an opportunity to end what has become an abuse of federal power.
It imposes a topsy-turvy kind of justice, starting from a presumption of guilt. As the Queen said in the trial at the end of “Alice in Wonderland”: “Sentence first, verdict afterward.”
At issue is Section 5 of the Voting Rights Act. It was intended to prevent historic discrimination against African-American voters. It prohibited jurisdictions deemed to have had a history of discrimination in the period from 1964 to 1972 from changing their election procedures without permission from either a special panel of a federal district court in Washington, D.C., or the Department of Justice.
However, in 2009 the Supreme Court declared that Section 5 was based on outdated facts and warned that since “the Act imposes current burdens” it must be “justified by current needs.”
As the Supreme Court noted then, and as current studies confirm, the outward indications of discrimination are less prevalent today in the covered jurisdictions than elsewhere in the nation. In an opinion dissenting from the decision of the U.S. Court of Appeals for the District of Columbia last year to reject the suit brought by Shelby County, Senior Judge Stephen Williams pointed out that black voters and white voters are registered in roughly equal proportions in most of the covered Southern jurisdictions, which also enjoy a higher percentage of black elected officials than jurisdictions in other parts of the nation.
The Voting Rights Act, moreover, offers an alternative way to redress voting rights abuses. Under Section 2, the Justice Department or any affected individual can bring suit in federal court seeking relief from discriminatory practices. Of the 33 Section 2 cases brought by the Justice Department since 1988, seven cases occurred in Southern states also covered by Section 5 while 26 occurred elsewhere.
South Carolina has joined Arizona and Georgia to back the Alabama suit seeking to overturn Section 5. Other states that must submit to “preclearance” of voting laws under Section 5 include Alaska, Louisiana, Mississippi, Texas and Virginia. Most counties in North Carolina are subject to Section 5, as are two in South Dakota (which has also joined the Arizona brief), and counties in California and Florida. Perhaps ironically, major parts of the New York City metropolitan area also have to seek preclearance as do townships in Michigan and New Hampshire.
Congress has had ample time to correct the flaws in Section 5 identified by the Supreme Court, but it has not acted. The Court should take the opportunity to overturn this anachronistic provision of the law.