Wednesday, June 26, 2013

Death of the Voting Rights Act: A Law No Longer Needed or a Prescription for Voter Suppression?

After signing the landmark Voting Rights Act of 1965 (VRA), which gave Congress and the Justice Department the authority to pre-clear any and all changes to voting practices, laws, etc... in the states (mostly southern) with past histories of grievous discrimination on the basis of race, President Lyndon B Johnson reportedly remarked that he had just ensured southerners would vote Republican for generations to come.  History tells us that his remark was accurate, though the change did not happen nearly as fast as Johnson had forecast.  A quick look at the electoral maps in the presidential elections since 1968 shows a growing pattern of southern voters, predominately white southern voters, switching from the Democrats to the Republicans.  By 1980, the transition was complete, though Bill Clinton, a moderate southern Democrat, was able to carry a few states south of the Mason-Dixon line in 1992 and 1996.  The transition was much slower in the House and the Senate, though today there are few Democrats representing any of the old confederacy.  Those that do are usually from districts drawn with a majority population that is African-American (i.e., Mississippi's 2nd Congressional District).  During that same period, African-American participation in elections, particularly in the South, rose dramatically to the point where it is now on par with that of white participation in elections.  There seem to be two primary viewpoints on the matter today.  I'll discuss them each in turn.

The first view is that because black participation in elections has increased to the level of whites, the Voting Rights Act is moot and no longer necessary.  Or at least the part of it requiring any changes to voting procedures by the states subject to the law be given clearance by the Justice Department prior to implementation.  That's what the Supreme Court said in a 5-4 ruling issued by Chief Justice John Roberts Jr. on June 25, 2013.  In Roberts' view, the states singled out by the 1965 law have changed.  Racism and voter suppression efforts are a thing of the past.  Thus, the formula determining which states are subject to the law is outdated and unnecessary.  The Court did not strike down the concept of pre-clearance, just the formula that was devised in 1966.  Given the dysfunctional Congress we have today, however, it seems the concept is effectively dead anyway. 

The second view holds that black participation in elections has reached the level of whites because of the protections afforded black citizens by the VRA.  They argue that if the protections are removed those who want to suppress voting by blacks and other minorities will enact laws aimed at doing just that.  Further, those laws, such as Texas' and Mississippi's voter ID requirements, will not be subject to clearance by the Justice Department.  This may lead to a decline in black/minority participation in the electoral process in those states, advocates of the VRA claim.  In essence, Jim Crow will once again thrive throughout the South.

I won't pretend to know who's right and who's wrong on this issue.  What I do know is that both major political parties and their supporters try to suppress the vote for the other party's candidates in every election.  Protections must be put in place to prevent majorities in power from manipulating the law to cement their own power at the expense of the minority.  What the Court did yesterday is to take the burden of proof that changes to existing voting procedures would not disenfranchise black/minority voters away from the states and their legislatures.  The burden of proof will now rest upon individuals, or groups of individuals, to prove that a law or procedural change has, in fact, disenfranchised them.  States will henceforth be considered innocent until proven guilty in a court of law.  Given the extreme difficulty (and expense) of proving voter suppression and/or disenfranchisement, it seems the Court has given states (and the majorities that control their legislatures) free reign when it comes to election law.  My hope is that they will use this power to enhance the democratic process by making voting simpler and easier for all legal citizens.  My fear is that they will not.

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