On Tuesday, the United States Supreme Court struck
down the formula under the Voting Rights Act of 1965 which is used to determine
which states and jurisdictions are subject to the Act’s pre-clearance
requirements. The Court’s ruling leaves intact the vast majority of the Voting
Rights Act, including provisions permitting the federal government to challenge
racially discriminatory laws.
According to the Court, Congress “employed
extraordinary measures to address an extraordinary problem,” when the Voting
Rights Act was first enacted. Intentional voter disenfranchisement was so
pervasive in the covered jurisdictions that anti-discrimination laws were
insufficient to correct the problems. As such, Congress targeted those
jurisdictions by effectively removing their ability to craft voting laws
without federal oversight.
The formula used by the Voting Rights Act to
determine which states received this treatment hinged on whether “those States
or political subdivisions that had maintained a test or device as a
prerequisite to voting as of November 1, 1964, and had less than 50 percent
voter registration or turnout in the 1964 Presidential election.”
While the criteria have slightly expanded over the
past half century, the fundamental components have not. The formula for
covering states like Alabama and Virginia while leaving states like Ohio and
Tennessee uncovered by section 5 was essentially frozen in 1964.
The Constitution recognizes a wide range of powers
held by the states under the Tenth Amendment; among those is the power to
regulate their elections. The Supreme Court’s decision recognizes that Congress
must develop a much more flexible and narrowly tailored formula for imposing
its will on that power and discriminating between the states.
Consider for a moment if Congress simply removed
references to 1964 from the initial formula for determining section 4 coverage.
States would be judged based on whether they maintain a test or device as a
prerequisite to voting or whether they had less than 50 percent voter
registration in the last presidential election.
Under that criterion, Alabama, Georgia, Louisiana,
Mississippi, South Carolina and Virginia, all of the originally covered states,
would not be targeted by the Voting Rights Act, based on 2012 voting data.
Most Americans might be surprised to find that
Alabama has a higher percentage of African-American citizens registered to vote
than California, Connecticut, Minnesota, Nevada and several other non-covered
states. The evidence of change becomes even stronger when it comes to the
percentage of citizens who actually voted in the last presidential election in
Alabama: 63.1 percent of blacks as opposed to 61.2 percent of whites.
While attitudes and social norms have changed
considerably since the 1960s, there should be no doubt that racist attitudes
exist across America. Those perspectives must not be given quarter at any level
of government. Even so, we should be proud that our country has changed. We
have made progress. As we continue to ensure that our election laws are free
from discrimination, Congress and the President have an obligation to ensure
that any solutions take those advances into account.
Most importantly, the Court’s decision gives the
residents of targeted states like Alabama a tremendous opportunity to prove
their detractors wrong by fighting remaining vestiges of racism…without the
heavy hand of the federal government.
About the author: Cameron Smith is policy director
and general counsel for the Alabama Policy Institute, an independent,
non-profit research and education organization dedicated to the preservation of
free markets, limited government and strong families. If you would like to
speak with the author, he may be reached 205.870.9900, at Cameron[at]alabamapolicy.org
or on Twitter @DCameronSmith.
This article was published by the Alabama Policy
Institute.
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