Thursday, February 7, 2013
Today in Voter Suppression: Shelby County v. Holder
I've been wanting to talk to you about Section 5 for a while. Below is an OpEd I wrote about a very important case coming up before the Supreme Court (so apologies for the strange tone). This is potentially a huge deal for minority voting rights. Enjoy!
Later this month the Supreme Court will hear arguments in the case of Shelby County v. Holder, which calls into question the constitutionality of Section 5 of the Voting Rights Act. Simply put, Section 5 requires states or localities with a history of racial discrimination to clear any changes in election procedures and districting with the Department of Justice or a three judge panel in Washington DC, before those changes may be enacted. It is among the federal government’s most important tools in combatting voter suppression. The Supreme Court must uphold Section 5 and identify this challenge for what it is: the latest in a long line of Republican attempts to rewrite the rules of a game they are losing.
During the 2012 election cycle, voting rights were thrust into the spotlight thanks to partisan attempts to restrict access to the polls for youth and minority voters. Although laws requiring voter ID or limiting early voting were introduced under the pretense of preventing voter fraud and relieving burdens on local election boards, their true motivation was clear-- disenfranchising Democratic voters. Perhaps the most flagrant example is the case of the Pennsylvania House Majority Leader Mike Turzai who boasted that, “voter ID…is gonna allow Governor Romney to win the state of Pennsylvania.” Following President Obama’s successful reelection, it may seem as if these concerns have passed by the wayside. However, for those of us who work in electoral politics the fight is far from over. If the Supreme Court does not uphold Section 5, millions of voters will effectively lose their political voice.
Opponents of Section 5 claim that the law is outdated because it was enacted to combat Jim Crow era literacy tests and that such discrimination no longer exists. However, one need only look to the recent election cycle to realize that racially motivated voter suppression is alive and well. Having run Election Day operations for a Texas Congressional campaign I can tell you anecdotally that local officials in one county opened polling locations in African American neighborhoods –and only those neighborhoods-- two hours late. Unsurprisingly, the commissioner in charge of elections in that county is an outspoken opponent of Section 5. Minority heavy polling places in an adjacent county in which the Department of Justice chose to have a preemptive presence (under a provision separate from section 5) did not experience such delays. In a Texas redistricting case, a three judge court slammed legislators for attempting to “remove the economic guts” from African American Congressional districts. Both the redistricting scheme and a discriminatory voter ID law would have been enacted in 2012 had Texas not been covered under Section 5. South Carolina voters would have been subject to a similar voter ID law and minority communities in Florida would have seen reduced hours at their polling places. The list goes on. Voter ID laws alone would have barred access to the polls for between 700, 000 and 1 million minority voters nationwide.
True, effected voters could have challenged the laws subsequent to their passing, but those legal battles would have been long and expensive and resolved only after the damage had been done. Before Section 5 this was common practice. Discriminatory legislation would be struck down after an election, a jurisdiction would find some other means of discrimination and the process would repeat itself. Section 5 shifts the burden of proof from the oppressed to the oppressor.
The prosecution will argue that Section 5 is unconstitutional because it treats some states and districts differently than others. However the choice of covered districts is not arbitrary, but rather based on a formula that identifies areas with a history of racially motivated vote suppression. Districts covered by Section 5 have in effect made their own bed. To the extent that the formula may be under-inclusive, this is an argument to expand Section 5, not eliminate it. Where federal intervention is truly no longer necessary districts can file for a “bail out,” which will exempt them from preclearance. Dozens of towns and counties have taken advantage of this mechanism.
The fact that states like Texas would so obviously not qualify for bailouts only speaks to Section 5’s necessity—as does Shelby County’s persistence in seeking ways to avoid complying with anti-discriminatory measures. As a voting rights advocate, it is my sincerest hope that these districts will one day meet the standards of equality to truly render Section 5 obsolete. Until that time, me thinks the Republican legislatures do protest too much.