AEI - Is the Voting Rights Act Constitutional?

EVENTS

Is the Voting Rights Act Constitutional?

Date:	Wednesday, April 22, 2009
Time:	3:00 PM -- 5:00 PM
Location:	Wohlstetter Conference Center, Twelfth Floor, AEI 1150 Seventeenth Street, N.W., Washington, D.C. 20036

WASHINGTON, MAY 8, 2009--Is Section 5 of the Voting Rights Act (VRA), praised as one of the most successful pieces of civil rights legislation in United States history, constitutional? Does it violate our nation's federal system? On April 22, in anticipation of the Supreme Court's hearing of Northwest Austin Municipal Utility District Number One v. Holder, AEI visiting fellow Edward Blum convened a panel of voting rights experts to discuss the constitutionality of Section 5 and whether it is still needed today.

Passed in 1965, the VRA was an exercise of Congress's special powers--enumerated in the Fourteenth and Fifteenth Amendments--to respond to discriminatory electoral practices in the Jim Crow South by ensuring equal protection of the laws, especially concerning voting rights. Section 5 of the VRA specifically required nine states (mostly in the deep South) and parts of seven others to obtain "preclearance" from the Department of Justice before any change--as small as moving a polling place--could be made to electoral procedures.

As Blum noted in his introduction, "a preclearance requirement is unmatched in our federal system." Traditionally, any locality, municipality, or state that engages in discriminatory practices is held accountable through adjudication on a case-by-case basis. Section 5, as noted by Gregory Coleman of Yetter, Warden & Coleman, instead "presumes that activities will be discriminatory" at the local level, even though "any violations that we do see are not limited to covered jurisdictions." Recently, when electoral discrimination has been discussed, it has largely been about noncovered jurisdictions, such as Florida and Ohio. Regarding Section 5's reauthorization, Coleman went on to explain that "one thing we don't see in the congressional record is any effort whatsoever to evaluate in any meaningful way the covered jurisdictions and noncovered jurisdictions to find out what are the worst places." Ultimately, if the records of discrimination do not demonstrate covered jurisdictions as more likely to have discriminatory proclivities, then why should they have to wear the "scarlet letter" of electoral practices created by the preclearance requirement?

The answer, according to Kristen Clarke of the NAACP Legal Defense and Education Fund, is that "noted progress in discriminatory records is directly attributable to Section 5" in covered jurisdictions. She explained that Section 5's importance cannot be understated, as "no law has done more to address the problems that have plagued our electoral process than the Section 5 preclearance provision." Jon Greenbaum of the Lawyers' Committee for Civil Rights Under Law largely agreed, adding that since Congress has special, sweeping powers in cases concerning civil rights and election law, and since Section 5 has been exceptionally successful in preventing racially targeted electoral practices, its constitutionality should be upheld. Clarke argued that the court should defer to the will of Congress; the Senate reauthorized the VRA in 2006 with a 98-0 vote.
A unanimous vote does not necessarily mean the provision is constitutional, however, said Richard Pildes, a law professor at New York University. He acknowledged the constraints on members of Congress to vote for the VRA; to do otherwise could amount to "political suicide."

The constitutionality of Section 5 will ultimately be decided in Northwest Austin Municipal Utility District Number One v. Holder, which was heard on April 29 and which has been described by the New York Times as "the biggest election-law case on the court's docket since Bush v. Gore" and one that "will set the direction of the debate over race and politics for years to come." Stepping back from the question at hand, Pildes pondered a question with deeper currents: is the United States even able yet to have a constructive discussion on changing civil rights policy? This landmark Supreme Court case should give us an idea.

--JON FLUGSTAD