Yesterday’s decision on the Voting Rights Act was not a big surprise to followers of the Supreme Court and election law. Just a few years ago, in the Northwest Austin case, the Court foreshadowed their holding in the Shelby County case. Their decision, which held that the formula used in §4(b) to determine whether jurisdictions would be covered by §5’s heavy handed preclearance procedures was unconstitutional, was in line with their decision in Northwest Austin. And it was the right decision.
There’s no debate – the Voting Rights Act has been wildly successful. At the same time, no one can argue that the Voting Rights Act wasn’t some of the toughest medicine the federal government has ever deployed to coerce states into behaving properly. In no other area of law does a state government have to essentially ask permission of the Federal government to take an action that is well within their proper sphere of authority. §5 was always meant to be a draconian measure, one meant to combat one of the most pernicious, invidious and flagrant Constitutional violations ever enacted in America – the Democratic Party’s Jim Crow laws.
But §5 was never meant to be permanent. As the court notes frequently in Shelby County, the point of §5 was to immediately address the massive disparity in voter registration between black and white voters across the South, including in Virginia. And while §5 has been reauthorized multiple times since it was first enacted, the formulas for determining which jurisdictions are covered have been tinkered with, usually to expand the amount of coverage, not shrink it. Because Virginia had enacted literacy tests, and because voter registration disparities were so large, Virginia was originally a covered jurisdiction – and rightfully so. The Byrd Machine didn’t want blacks voting in Virginia.
That was 50 years ago. Today, Virginia’s history of blatant, state sponsored racial discrimination is just that – history. The disparity in voter registration has closed considerably, and Virginia has played a role in electing African-Americans to political office at every level, from President and Governor to General Assembly and scores of local offices across the Commonwealth. Still judging Virginia on decades old criteria that aren’t really relevant anymore made little sense, and the high court agreed.
Keep in mind, the Court’s decision doesn’t end the VRA. It leaves in place the bar on racial discrimination in the elections process, and the §2 legal process to address violations remains intact. Despite my colleague Shaun Kenney’s hyperbole, the Court acknowledges that racism still exists, and laws are necessary to combat it, and that’s why §2 remains in effect. But the preclearance requirements, especially on states that have remedied past crimes and no longer need federal interference with their laws, needed to be addressed.
Leaving the federalism issues – which are substantial – aside, the cost of preclearance on Virginia has been high. Local electoral boards, like the one upon which I sit, have to clear even the most minor changes – moving a precinct or altering a form – with the Justice Department. That process takes at least 60 days, which lengthens an already lengthy process that has multiple layers of protection to ensure nothing improper happens. Given the multitude of statutory deadlines that are built in Virginia election law, removing the need for preclearance – at least until Congress rewrites the formulas – will be a benefit for the Commonwealth.
Critics of the decision, including Democratic Attorney General candidate Mark Herring, are claiming that this is a “step backward” for Virginia and for the nation. I disagree. What the Court did is indicative of the major leaps forward we, as a nation, have made in removing the stain of Jim Crow and the state sponsored racism that was endemic in the past. Today, election decisions turn most often on partisan lines, not on racial ones.
The Voting Rights Act has been extremely successful and that’s why this decision was the right one. When we enact a law to fix a specific problem, especially one that is so burdensome on the states and is so extraordinary in our federal system, it should remain on the books only as long as necessary to address the problem. It was clear that the criteria in §4(b) were outdated. By striking it down, Congress will either be forced to come up with a new formula, hopefully one that doesn’t include Virginia, or rethink if §5 of the VRA is still necessary at all (Justice Thomas thinks it isn’t).
We’ve come a long way in 50 years, and the Court’s decision in Shelby County is a good step in the right direction. The Court should be applauded for their even-handedness. By overturning §4(b) – not §2 or §5 – they struck the right balance and the union will be stronger for it.
P.S. Nobody is going to even notice this article after the Prop 8 and DOMA decisions come out this morning.
