The Magazine

It Will Always Be 1965 . . .

To the voting-rights activists.

Sep 29, 2008, Vol. 14, No. 03 • By EDWARD BLUM
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Whenever the NAACP, People for the American Way, the American Civil Liberties Union, the Mexican American Legal Defense and Educational Fund, the Lawyers' Committee for Civil Rights Under Law, and the Public Citizen Litigation Group intervene in a lawsuit, it is safe to assume they believe much is riding on the outcome. And, indeed, much is.

In early October, the Supreme Court will be presented with one of the most important voting rights cases of the last two decades. The case, Northwest Austin Municipal Utility District Number One v. Mukasey, will decide the constitutionality of Section 5 of the recently reauthorized Voting Rights Act. If the plaintiff--a small, residential subdivision of 3,500 people north of Austin, Texas--prevails, racial gerrymandering, among other distortions to our body politic, will be greatly diminished. So it comes as no surprise that these groups--all of them defenders of racial gerrymandering--have joined the fray.

Although the lawsuit is complex, the central issue to be resolved by the justices is whether Section 5, a "temporary" provision of the 1965 Voting Rights Act, can still be applied today to a handful of mostly southern states and jurisdictions, which include the Austin district.

Section 5 forbids all of nine states (mostly the old Confederacy, plus Arizona) and parts of seven others from enacting any change to voting practices or procedures without the consent of either of two entities of the federal government--the attorney general or the District Court for the District of Columbia. Any change--from moving a polling location across the street to an entire congressional redistricting--must be preapproved (or, in the lingo of the statute, "precleared"). The only way a jurisdiction can escape this federal oversight is to exercise the statute's "bailout" provision, which allows a covered jurisdiction whose record of nondiscrimination satisfies the Justice Department to be exempted from the preclearance requirement of Section 5.

This section was set to expire after five years, in 1970, but it was repeatedly reauthorized by Congress, for the third time in 2006. It is now slated to expire in 2032, 62 years later than originally intended.

The preapproval requirement of Section 5 is unique in our nation's legislative history. Neither before nor since has Congress enacted a law like this one, which compels a state or one of its sub-jurisdictions to seek permission from the federal government before one of its own laws or rules can go in effect. Section 5 imposes a guilty-until-pronounced-innocent standard on nearly 25 percent of our nation's population. It is the greatest affront ever to our system of constitutional federalism.

Nevertheless, in the Jim Crow South of the 1960s, the preclearance provision of Section 5 was indispensable. Without this draconian measure, the Voting Rights Act's central mission--ensuring blacks could register and vote--would have gone unmet. After all, for decades, southern officials had successfully engaged in pernicious, never-ending gamesmanship to disenfranchise blacks. In 1965, Congress had volumes of empirical evidence to justify this extraordinary requirement.

But that was then. To our nation's credit, every official Jim Crow-era voting barrier--most important, the literacy test--is gone. As one election law scholar told Congress during the reauthorization hearings, "Bull Connor is dead."

Congress should have allowed preclearance to expire in 2006. Unlike in 1965, no evidence exists today that shows systematic, widespread disenfranchisement of black (or Hispanic) voters in the jurisdictions covered by Section 5. Not only is Bull Connor dead and buried, but by every factor social scientists use to measure electoral opportunity for minority voters--registration rates, election participation, and success of minority candidates, to name a few--minorities actually outpace whites in most Section 5 jurisdictions. A study conducted by the American Enterprise Institute shows that there is no quantifiable difference between minority voting rights in covered and uncovered jurisdictions. In other words, requiring Texas, Arizona, and Virginia to have their local laws preapproved by Washington, but not Arkansas, New Mexico, and Tennessee makes no sense in 2008.

Quite apart from the federalism issue, by the late 1980s, three developments were turning Section 5 of the Voting Rights Act on its head, transforming it into something well beyond the bounds of the original intent into a mechanism for creating safe majority-minority voting districts.