Overturn Unconstitutional Voting Rights Act; Congress Must Move on Outdated Measure
Byline: Roger Clegg and Joshua P. Thompson, SPECIAL TO THE WASHINGTON TIMES
The Supreme Court granted review last week in Shelby County v. Holder, a case challenging the constitutionality of Section 5 of the Voting Rights Act.
This is an important case because Section 5 is one of the key provisions of the act. It requires many state and local governments - primarily but not exclusively in the South - to get permission from the federal government before making changes in any voting-related practice or procedure.
This includes everything from moving a polling place from an elementary school to the junior high school across the street, to statewide redistricting plans, to voter ID laws and whether party affiliation is listed on a ballot.
Section 5 was part of the original 1965 Voting Rights Act and at the time was necessary to safeguard the rights of black voters. Southern officials were very clever in keeping one step ahead of the Justice Department in changing laws and procedures in ways that kept blacks from voting. Section 5 solved this problem by saying that no changes could be made without getting preclearance first from the federal government. So far so good, and early challenges to the act were rejected by the courts.
Times have changed, however, but - for political reasons alone - Section 5 has not. There are several problems with Section 5. It raises serious federalism concerns by requiring state and local officials to get federal preapproval for practices and procedures that are fundamental to any government's sovereignty. It also discriminates by requiring some state and local governments to seek such preclearance but not others.
This could be justified in 1965, but Congress had no warrant or factual basis in 2006 to extend Section 5 mechanically for another 25 years. Congress did not revisit the jurisdictions it covered, and the fact is that the distinctions between the South and the rest of the country have diminished dramatically, if not effectively vanished.
What's more, in 2006, Congress not only extended Section 5 without changing its coverage, but also expanded it in ways that further undermine its constitutionality. In 2009, the court unanimously signaled Congress in another case that there were problems with the current statute, but Congress has ignored that warning.
Here's perhaps the most serious problem of all with Section 5: It prohibits not only voting changes that have a discriminatory purpose, but also those that have a disproportionate effect. …