Now that the Supreme Court has ruled unconstitutional a critical piece of the Voting Rights Act (VRA), it seems to be the right time to speculate as to the effects of the absence of federal supervision of elections in former Section 5 states like Georgia.
Section 5 of the VRA requires that some, mostly Southern, states and local jurisdictions that have shown a history of discrimination against minorities be required to pre-clear changes in their election laws with the federal government. The court’s ruling agreed with plaintiffs from Shelby County Ala., who argued that the pre-clearance provisions were discriminatory, vague and outdated.
The Court left the rest of the law intact. Therefore, aggrieved parties still have the right to sue in federal court. However, the onus for filing a lawsuit is on those who have been harmed and the lawsuits are to be filed after the fact.
It is now up to Congress to rewrite the pre-clearance standards to be in compliance with the court’s decision. Probably the smartest thing to do would be to expand the pre-clearance provision to the entire country and make the paperwork easier to file and review.
Because this issue is so politically charged, I really don’t expect that Congress will be able to agree on anything along these lines for a long, long time, if ever. Therefore, I believe we need to think about a future in which the pre-clearance provision of the VRA is essentially gone.
To my liberal friends I would say that all is not lost. In reality, pre-clearance has become a double-edged sword. Republican administrations since Reagan have used the pre-clearance provision to help build a Republican majority in the House and in a number of state legislatures. When Republicans have held the presidency, the Justice Department has supported, with the full complicity of the Congressional Black Caucus, the creation of majority minority congressional and state legislative districts that essentially stuff Democratic voters into the fewest number of districts possible.
This officially sanctioned gerrymandering has created a structure such as we saw in the last election where the total vote for Republican House candidates was well short of the Democratic vote total and, yet, the Republicans still maintained a substantial majority in the House. Thus, it might be time for liberals to let this portion of the VRA go despite the galling overreach of the Court in reversing a clear expression of congressional will.
To my conservative friends I say, “to those who the gods want to punish, they give everything they want.” I understand that it must be appalling to conservatives, particularly in the South, to have their states exist essentially in receivership when it comes to election law; this even after integration, at least in the formal sense, has been embraced in most of the country including Section 5 jurisdictions. As noted above, Republicans have been enormously adept at using the pre-clearance provision for their own purposes. And, now, without the pre-clearance requirement, conservatives are on their own.
My warning to conservatives is not to overreach. Given demographic trends and population changes, vote suppression efforts will only work as a temporary expedient and will possibly even stimulate a backlash.
The Court’s decision will likely change very little. Attempts to game election laws with the intent to discriminate against minorities are still subject to challenge. The essential realities of the demographic transition of the American population remain the same and, thus, so do the challenges facing both the Democratic and Republican parties.
Perhaps, in the long run, only the Supreme Court will be affected by its own ruling. This ruling, along with Bush v. Gore and other political decisions reinforce the perception that the Supreme Court is in the process of transforming itself from a judicial body to just another (but in this case undemocratic) legislature.
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