The significant decision by the U.S. Supreme Court on same-sex marriage rights has already overshadowed their equally significant decision on the Voting Rights Act, but before that case vanishes from our awareness, it’s worth a deeper look.
Reactions to the Voting Rights decision — which struck down parts of the landmark 1965 bill — were entirely predictable. Conservatives hail it, liberals decry it. The division of the court into liberal and conservative blocks appears reaffirmed.
There is another perspective on the case: it’s yet another illustration of America’s sub-optimal policy-making process. Devising the best policy for ensuring voting rights is both necessary but less obvious than most think.
Proving discrimination
The original voting rights act of 1965 was aimed at what everyone (including those petitioning to overturn it) acknowledged was a level of extraordinary discrimination against Black citizens in certain southern states. Blacks were blocked from registering and voting by law — and by threat of violence. It’s worth remembering that within the lifetime of older Americans, we had death squads in this country who targeted minorities who tried to assert their rights.
Section 4 of the Voting Rights Act defined a formula by which certain states would be forced to have changes in voting laws reviewed by the federal Department of Justice. That formula identified areas where voter registration and participation rates among Blacks was significantly lower than than those of Whites.
Skip forward to the present. Those states, by and large, no longer have such differences. The states can point to equal levels of registration and voting by blacks, to equal representation in state legislatures and to significant numbers of Black officeholders. So, they argue, conditions of systematic discrimination no longer exist.
This is dismissed by liberal critics as absurd; they argue structural racism continues to exist. That’s all well and good, but where are its effects on voting? Many critics of the decision don’t bother to substantiate this claim, its truth is simply taken as an article of faith. The dissenting opinion in the court, however, lists a number of distressing instances of efforts to discriminate by so-called “second generation” techniques of voter ID laws, at-large districts and gerrymandering.
In a filing with the Supreme Court, the state of Alabama makes an interesting claim. It acknowledges its own history of discrimination, points to the sort of progress mentioned above, but does not say it is perfect. Instead, it simply says that the struggles for equality in Alabama are the same as those going on in every other state.
So, is voter discrimination worse in the South today than in the rest of the nation? Is it still accurate to call out one region as worse than the others? Certainly the North is guilty of hypocrisy on race, too. Many from outside the South who loudly supported the efforts of Dr. King to overcome racism in the South suddenly had a change of heart when he took his campaign into their own northern cities.
Nor is it as simple to define discrimination as it once was. Is drawing the boundaries of a district with the intent of ensuring a black majority a requirement to eliminate discrimination? The Pacific Legal Foundation claims that’ss what the DOJ requires. On the other hand, some jurisdictions have eliminated districts and gone to at-large voting with the intent of diluting the black vote.
Burdens
Policy is not just about correct values and goals, it is — crucially — about implementation. Many a good idea flounders on a complex or inept implementation. And lawyers, to invoke a truism, are not motivated by efficiency. Anyone who has ever been involved in a legal case knows how they spin out and become complex and expensive.
Has implementation of the Voting Rights Act put an unnecessary burden on the states affected? Alabama cites several examples. An attempt to put in place a uniform set of laws for counties, similar to those in other states, required, they claim, several submissions to the DOJ of over 1,000 pages of material. An effort to stop a conflict-of-interest situation where legislators were getting paid by colleges got blocked for a time because a disproportionate number of Black legislators were receiving such payments. And cancelling elections made impossible by Hurricane Katrina required DOJ review for any discriminatory effect. (It acknowledges, however, that DOJ fast-tracked approval of this cancellation.)
The decision of the Supreme Court cites various statistics on DOJ review of election law changes by the states in question. The DOJ filed 826 objections to such changes between 1982 and 2004 and forced over 800 changes of laws that they eventually approved.
So, does this prove that there is still significant discrimination (as the dissenting opinion claims) or does this prove that the DOJ is putting a huge burden on states for trivial issues? Someone who combed through all those actions could probably compile a list of 10 or 12 egregious examples of discrimination the DOJ rightly stopped as well as a list of 10 or 12 trivial or absurd objections that should never have attracted any legal attention.
Some claim the DOJ abuses its power, but provide few specific examples. Texas claims the DOJ grills state legislators in depositions on their intent in voting for a specific law, and says this is totally unprecedented.
As an example of absurd legalistic rules, several news articles claim that DOJ approval is required for a temporary move of a polling place to across the street. But has this ever actually happened? And if it did, was the move across a tiny side-street — or was a polling place heavily frequented by Black voters moved across a four-lane divided highway to a location without parking? Who knows.
Current laws and current conditions
The Supreme Court’s majority slams the formula for deciding on which jurisdictions are under the control of the DOJ as being out of date. But is that true? States and smaller jurisdictions can bail-out. A jurisdiction that goes 10 years without a violation gets out of the restrictions. Dozens of jurisdictions including counties, cities and even irrigation districts have successfully bailed out. Jurisdictions that are found to newly discriminate can be subject to a “bail-in” provision where they get added to the law.
So, it is possible to claim that the law is indeed flexible, adaptable and relevant to current situations: discriminate and you get put under review, prove you don’t discriminate and you are freed to go your own way.
How has this actually worked in practice? Is it massively expensive for a jurisdiction to gain an “opt-out”? Does it take years? Could that be made more systematic and efficient? That would be worth investigating.
The real issue
Voter suppression efforts do exist in this country; it is hard to see the push for voter ID laws as anything other than an attempt to remove Democratic party voters from participation, since the poor will disproportionately be affected by ID requirements. (Meanwhile, widespread voter fraud generally has not been proven to exist, as those laws’ proponents typically allege.) Indeed, Texas lost no time in trumpeting that they will implement their voter ID law as a result of the decision. Both Texas and Arizona made voter ID issues key to their petitions to the court.
Note that it is the poor who are affected. That certainly includes Blacks, even disproportionate numbers of Blacks, but that isn’t the most clear lens through which to view these laws. Class is the issue here even more than race.
More to the point, voter ID laws are not a unique effort of the Old South. Indeed, Indiana was an early case that went to the Supreme Court, and Wisconsin and Pennsylvania have been other significant battlegrounds over voter ID requirements.
So, in a way, Alabama may have a point.
The views expressed in this article are the author’s own and do not necessarily reflect Mint Press News editorial policy.