Let's have a look at some United States history: At the start of 1860, there were thirty-four states identifying themselves as a part of the United States. By the end of 1861, there were twenty-three. You may have heard of this; it was called the start of the American Civil War. Besides the deaths of six-hundred-thousand people and driving a stake into the heart of the notion that states had the right to secede from the Union, this war also led to the thirteenth, fourteenth, and fifteenth amendments to the Constitution.
Here is some of the relevant text from those amendments:
Section 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2
Representatives shall be apportioned among the several States according to their respective numbers counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
...
Section 5
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Section 2 was later revised, to reflect the right to vote being extended to women and eighteen year-olds in later amendments.
Section 1
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2
The Congress shall have power to enforce this article by appropriate legislation.
About nine decades, following the ratification of these amendments, the Congress saw a number of state-level laws being utilized to disenfranchise voters on basis of race. Specifically, many former-Confederate states implemented poll taxes and literacy tests. As African-Americans were subject to employment and education discrimination, their rates of poverty and illiteracy were grossly high, as compared to the Caucasian population. Thus, without explicitly saying, "Black people aren't allowed to vote here," racist legislators were able to deny the right to vote, on basis of race. Congress, seeing the injustice of rendering large swathes of the population as non-voting, second-class citizens, authored and passed the
Voting Rights Act of 1965The full text of the legislation can be read
here, but what will be garnering attention in the coming week is section 5, quoted below:
SEC. 5. Whenever a State or political subdivision with respect to which the prohibitions set forth in section 4(a) are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the Attorney General's failure to object nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court.
In plain language (and doing the necessary cross-referencing and additional research), this means that any state or voting district that had less than fifty-percent of its population turn out for the 1964 election is subject to special requirements, when implementing new voting regulations or redistricting plans. Basically, the executor of such a regulation or redistricting plan has to submit the regulation/plan to the District Court of Washington D.C., where the Attorney General of the United States will have an opportunity to object. If he doesn't, then the state/county can proceed, but if there is an objection, then there must be a thorough investigation of the proposed change and its likely effects, and even if it passes muster as not being a means of racial disenfranchisement, the change is still subject to review over the course of the following five years.
Coincidentally, eleven states had less than half of their eligible voters turn out for the 1964 election. Those eleven states also happened to be the exact same eleven states that attempted to secede from the Union, in an attempt to cling to their right to declare a minority race inferior enough to be held as property. Yay, history!
Jumping forward, then, to 2006, the
Voting Rights Act was approaching its sunset clause. Like many laws in the United States, this one was intended to be subject to periodic Congressional review and revision, and so if not renewed, the
Voting Rights Act goes away. At the federal level, though, in 2006, renewing the
Voting Rights Act had wide bipartisan support. The renewal passed the House with a vote of 390 supporting (including most Congresspersons from affected districts) to thirty-three opposed. The renewal passed the Senate with a vote of ninety-eight supporting, including every Senator from every affected state, to zero opposed. Within a week of the renewal passing Congress, President George W. Bush signed into law the twenty-five year extension.
But what a difference a day makes. In this case, the specific day was November 4, 2008, Election Day, in the United States. Most commentators look back on the 2008 election results as the public's litigation of a failed President and a backlash against a very old candidate choosing a very wacky running mate. Underlying that, though, there was writing on the walls that some of the more politically savvy picked up on: The composition of state-level electorates was changing. I've already gone on at length about the GOP's possible demographic problem,
in the 2012 election thread, so I won't belabor that point here. Suffice to say, though, Republicans who want to see their policy agenda put into practice at the federal level are keen to find ways to tip the Electoral College back in their favor, without having to significantly modify that policy agenda.
One way to tip the Electoral College in your favor, without significantly changing your policy positions, is to disenfranchise voters, who tend to vote against you, in states that tend to be close races. Thus, between 2008 and 2012, numerous states put forward voter ID laws that effectively targeted demographic groups that tend to skew liberal, such as poor, urban populations. Now, the phrase, "poor, urban population" is actually considered a little distasteful, in some contexts, because of how strong a correlation there is between someone living in an urban setting, below the poverty line, and that person's skin tone and ancestry. In other words, when you try to disenfranchise a poor, urban population, you are, whether by intent or coincidence, trying to disenfranchise African-Americans.
Enter: Shelby County, Alabama. The Shelby County government feels that the additional approval that they must receive, in order to change their local election laws, is onerous, unfair, obsolete, and a violation of the tenth amendment to the U.S. Constitution (powers not explicitly provided to Congress are held, then, by the individual states). As such, they have filed suit against the Attorney General, and the Supreme Court will be hearing oral arguments for the case (
Shelby County, AL v. Holder) later this week.
You know what? I agree with Shelby County.....sort of.
When the
Voting Rights Act passed, in 1965, it provided a critical protection to the rights of people in places where those rights were under direct and constant threat. Where I agree with Shelby County is basing what districts' election laws warrant additional scrutiny on the 1964 election is obsolete and unfair. How many generations of turnover have there been in all of the state legislatures? The racist legislators who were, in 1964, trying to disenfranchise voters are largely long gone.
But we still need to deal with the replacements, who are not geographically limited to the same states and districts, where their predecessors had power. Yes, the metric for determining what districts deserve special scrutiny is obsolete and that has led to unfair implementation. That doesn't mean that the provision providing for this additional scrutiny has no place in the modern day. My hope is that, instead of the court striking section 5 of the
Voting Rights Act, as Shelby County is hoping will happen, they instead strip out the provisions of section 4 that restrict the scrutiny of electoral law changes to particular districts, on basis of an election fifty-years-gone.
Your thoughts?
