Yesterday, the US Supreme Court heard the state of Alabama’s challenge to section 5 of the Voting Rights Act in the Shelby County v. Eric Holder case.
Congress enacted the law to counterbalance states that had discriminatory poll tax, literacy tests and drew their districts in a way to make it hard for a black or other minority candidates to get elected. Rather than sue each state when they were caught violating minority voting rights, the law was put in place to target those states and areas found to have the most egregious violations. Then, states subject to the law, Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina and Virginia and parts of Arizona, Hawaii and Idaho were forced to submit changes in their voting laws and redistricting plans to the federal government for approval before instituting them.
Although the law was created to last only five years, Congress reauthorized it each time it expired and added states that qualified for the special rule depending on whether or not there was continued evidence or pattern of discrimination.
In 1975, when the law came up for renewal, Congress added a provision prohibiting “language discrimination” to the formula which then made all of Alaska, Arizona and Texas and sections of California, Florida, Michigan, New York, North Carolina and South Dakota also subject to the law. Those states were caught using English-only election materials. After that, renewals came up every 25 years. The Supreme Court has hinted to Congress to update the data that is the basis of the law before passing another renewal, but it has not. That made things quite ripe for the challenge that was up at bar this week.
Shelby County, Alabama decided it no longer wanted to wear the “badge of shame” and remove section 5 given the fact that blacks have high voter registration numbers, the data relied on for the formula from 1975 is now over 25 years old and heck, there is a black president, for Pete’s sake. There is no need for the section of the law to cover them at least given that section 2 of the voting rights give those aggrieved if things do wrong a chance to sue, its lawyers argue.
Why Alabama will lose
Aaaah. But there in lies the challenge. To sue after the fact is costly, time consuming and a deterrent as not too many would bother because of all the resources and effort involved. It is a drag on the already burdened court dockets.
Further, the jury is still out as to whether states are now using brand new systems to disenfranchise black and Latino votes. Now more than ever, the Latino vote especially is targeted given that it is the largest growing population and each side of the political aisle is jockeying for influence of that voting bloc.
Also, consider in 2012 the wide swaths of unprecedented changes to voter laws requiring identification, shortening voting hours, using less machines which ensured longer waits, and shortening the turnaround for voter registration as in the state of Florida.
The argument can clearly be made that those incidents and attempted changes prove that Section 5 is still indeed needed to combat these newer forms of disenfranchisement not anticipated and not used in 1975. The case could be made that section 5 is a living law that can and should change and adjust with time.
The day after oral arguments, much is made about the Justice’s questioning on whether Southern states are considered more racist than other states and the fact that traditional swing voter Justice Anthony Kennedy said that things are “different.” Some suggest that is a sign the Section may be doomed. To the contrary, that mention of difference could have to do with the NAACP’s argument that the section is needed and there to address current and future voter discrimination as well.
Further, in this case the Supreme Court on its own motion, decided to add in the 14th Amendment given that in the past it was able to strike a Texas redistricting attempt to shut black and Latino candidates out using the 14th amendment. That signals that the Court may be interested in couching additional avenues for upholding section 5.
Also, there are those who would contend that the challenge is being made in an attempt to clear the way for future plans to curtail the minority vote for the 2014 and 2016 upcoming elections. The writing is on the wall that the demographics are changing and getting more diverse and to survive this change of tide, removing federal oversight would make it easier for states to put into place last minute plans to minimize voting from those groups.
The theories are plentiful.
And on the other side, the challenge could be made that in some districts, Democrats have and can draw district lines in a way to make it tough for a Republican to win a seat at all. In Maryland, for example, the 3rd Congressional district was drawn so gangly in order to weave in as many high minority areas as possible in order to deny a Republican candidate, a chance to win a seat.
Isn’t that a form of racial discrimination, they’d argue. Yes, but Whites are not part of the protected class considered by the law.
The US Supreme Court has upheld the law four times in four decades and most likely will again in this case.
There is sufficient evidence and arguments that the U.S. government can make to convince the court to uphold the law.
It only need look at the egregious incidents that happened this past election cycle.