Magazine article The New Yorker

Voter, Beware

Magazine article The New Yorker

Voter, Beware

Article excerpt

The Voting Rights Act, which passed in 1965, stands as one of the great monuments to civil rights in American history. The Fifteenth Amendment, ratified in 1870, purported to give Americans the right to vote regardless of "race, color, or previous condition of servitude," but it was not until a century later, with the passage of the act, that the right was enforced, and Southern blacks were finally free to cast a ballot. Over the years, an ideologically diverse group of Supreme Court Justices has reviewed and approved the constitutionality of the act many times. But, in a case to be argued before the Court this spring, the current conservative majority has a chance to undo this signal achievement of American democracy.

Section 5 of the act, which is at issue in Northwest Austin Municipal Utility District No. 1 v. Holder, is what gave the legislation teeth. That provision singles out by name those states and counties with especially notorious histories of discriminating against African-Americans, through such mechanisms as literacy tests, character tests, and poll taxes. The law not only eradicated these obstacles; it went a crucial step further. It decreed that if the "covered jurisdictions" wanted to change their voting procedures in any way--from redrawing district lines in the state legislature to moving the location of a solitary polling place--they first had to obtain permission from the Justice Department. (Congress reauthorized the Voting Rights Act in 1970, 1975, 1982, and 2006, and in the process expanded its coverage to include several Western states with histories of discriminating against Hispanic and Native American voters.) The process of review by the Justice Department, which is known as "preclearance," has been remarkably effective.

And that is the point of the lawsuit. Some of the jurisdictions covered by Section 5 now want to be released from this form of federal receivership. As the lower court in the case put it, the plaintiffs argue that the preclearance provision should be found unconstitutional "because Congress 'irrationally and incongruously' chose to continue imposing 'disproportionate' burdens and a 'badge of shame' on covered jurisdictions on the basis of an 'ancient formula' and 'conditions that existed thirty or more years ago but have long since been remedied.' " What is the proof? The plaintiffs stated it in the first line of their brief: "The America that has elected Barack Obama as its first African-American president is far different than when Section Five was first enacted in 1965."

To paraphrase the President: Yes it is. The formula for determining which jurisdictions are covered is largely based on election results from 1964, a time that is nearly a half century, and a world, away from our own. Almost all of Virginia and much of North Carolina are covered jurisdictions under Section 5, and Obama won both states. Moreover, the Justice Department has for some time been approving ninety-nine per cent of the electoral changes submitted by covered jurisdictions. As Representative Lynn Westmoreland, a Georgia Republican, put it in arguing against the most recent reauthorization of the law, "Congress is declaring from on high that states with voting problems forty years ago can simply never be forgiven--that Georgians must eternally wear the scarlet letter because of the actions of their grandparents and great-grandparents. …

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