Not Yet Section 5’s Time To Die

The need for the Voting Rights Act will die, and it should die, on the day when Americans can say to one another with a straight face that racial discrimination in voting no longer exists there. Sadly, that day has not come.

March 1, 2013

The need for the Voting Rights Act will die, and it should die, on the day when Americans can say to one another with a straight face that racial discrimination in voting no longer exists there. Sadly, that day has not come.

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Before the United States Supreme Court’s oral argument this week in Shelby County v. Holder, Professor Garrett Epps cut to the core of the conflict over Section 5 of the Voting Rights Act. “On the one hand,” he wrote Sunday in The Atlantic, “there is the right to vote… the cornerstone of a democratic system.” On the other hand, he added, there is the “sovereign dignity” of the states, words and a principle that “are mentioned nowhere in the Constitution.”

As we begin to contemplate a world without this vital provision of this venerable law, a world in which federal officials are deprived of one of the most successful tools they have ever had to root out racial discrimination in voting practices, it is worth noting today the relative values of these conflicting interests as they impact the everyday lives of the American people.

There is simply no comparison-- despite the tone and tenor of some of the questions posed Wednesday by some of the justices.

To say so is not to diminish the principles of ‘federalism” contained in the Constitution. Nor is it to exalt the idea of broad expanses of federal power and authority over traditional state functions. Shorn of hoary legal doctrine and theory, it actually is a relatively simple equation: keep away a state’s right to be free from Section 5 and you’ll ensure more citizens can vote. Leave unprotected a citizen’s right to vote by invalidating Section 5 and you’ll prevent more citizens from voting.

The right to vote is the right “which no American, true to our principles, can deny,” President Lyndon Johnson declared on August 6, 1965, the day he signed the Voting Rights Act into law. “This right to vote is the basic right without which all others are meaningless. It gives people, people as individuals, control over their own destinies.” We have waged war over this right. We have shed blood over it abroad. And in 1965 we made a commitment to one another to finally respect and nurture it here at home.

By contrast, the “right” of a state to be free from the obligations of federal law is an altogether different matter. In theory, it’s a grand, old thing. In practice, as Epps points out, the right of Shelby County, Alabama to be free from Section 5 of the Voting Rights Act is the right of local officials to be free from the burden of having to fill out paperwork to justify a potentially discriminatory new election rule or voting practice. It is the right to save litigation costs-- the right not to have to appear in federal court.

It would be a very disheartening turn, indeed, if the justices were to jeopardize the most direct right any citizen can have in favor of one of the most indirect rights most of us can fathom. And it would be worse if the Supreme Court were to do so by accepting the remarkably cheeky argument, made Wednesday, that, despite what Congress says, and despite what we see with our own eyes, the age-old problem of racial discrimination in voting already has been “solved” by enforcement of the Voting Rights Act.

Neither Shelby County, nor Alabama, nor any other jurisdiction in this country can unilaterally declare the end of racial discrimination in voting practices. Not as a matter of law and certainly not as a matter of fact. Indeed, as the record before the Supreme Court amply indicates, such discrimination remains prevalent in Shelby County, and in Alabama, and in many other jurisdictions that are both “covered” and “uncovered” under the federal statute. This is cause for consternation, not celebration; for a renewal of our bond to protect minority voters, not for a retreat from these first principles.

This is so, especially, after 2012. We all just endured an election cycle in which one party systematically sought to suppress the likely voters of another party. We all just saw how one federal judge after another, appointees of both Republican and Democratic-presidents, upheld and enforced Section 5 of the Voting Rights Act as the necessary and proper legal means to protect the rights of minority voters in Texas, Florida and South Carolina. As a nation, how can we give meaning to what we have just witnessed by quickly gutting the provision that provided this protection to millions of U.S. citizens?

In court on Wednesday, no one uttered a peep about the 2012 election and the role that Section 5 played in securing the right to vote to minority citizens in those three states (and more). Focusing upon Congressional intent in the run-up to the 2006 renewal of the Voting Rights Act, fighting over the state of the legislative record as it stood at that time, no lawyer or justice thought it pertinent to note that without the force of Section 5 last year many of those voters would have been disenfranchised.

I wonder what will become of those citizens if Section 5 is struck down and if, as expected, Congress is unable to quickly enact its successor. I wonder how many eligible voters will be disenfranchised by the current generation of voter suppression laws- the new age of devices and ruses which officials have designed to cut across economic and racial and social lines. For these fellow citizens, I fear the cry of states’ rights in 2013 and beyond will begin to sound very much like the cry of states’ rights in 1964 and earlier.

Of course, Congress could have made different determinations in 2006 when it renewed the Act. Federal lawmakers could have updated their coverage formulas in ways the law’s critics now say are relevant. But nothing about the voter suppression tactics employed in the 2012 election suggest that Congress went too far in keeping Section 5’s covered jurisdiction’s “covered.” If anything, the complaint after 2012 is that Congress didn’t go far enough. And that is no reason to strike down a key provision of one of the most popular and successful laws in American history. The need for the Voting Rights Act will die, and it should die, on the day when Americans in Shelby County and every other jurisdiction, “covered” or not covered, can say to one another with a straight face that racial discrimination in voting no longer exists there. Sadly, that day has not come.

Andrew Cohen is a Brennan Center Fellow, national correspondent for The Atlantic, and a CBS News legal analyst.