| Opinion EditorialIt's time to declare a victory in battle for voting rightsBy Ralph W. Kasarda
posted in the Omaha World-Herald
April 28, 2009
Ralph W. Kasarda
PLF Attorney |
The writer, of Sacramento, Calif., is an attorney with the Pacific Legal Foundation, an organization focusing on limited government and constitutional issues.
Editor’s note: On Wednesday, the U.S. Supreme Court hears legal arguments over whether the federal government should still require certain states and localities to submit their congressional redistricting maps for federal approval. This essay was written exclusively for The World-Herald.
When a war has succeeded, with the cause of justice carrying the day, the fighting should end and the celebrating should start. But sometimes, paradoxically, combatants can be so emotionally invested in a noble cause that they’re reluctant to admit success and lay down their arms.
Congress displays this "denial of victory" syndrome by continuing to use hard-edged, sometimes oppressive weapons in a battle that already has been successfully concluded — the fight against race-based discrimination at the ballot box.
Should the federal government still micromanage voting procedures in the South — and a number of local jurisdictions outside the Old Confederacy — when there isn’t any more discrimination to fight? This is the question that the U.S. Supreme Court confronts in a case it will hear today: Northwest Austin Municipal Utility District Number One v. Holder.
At issue is whether there is a continuing need for Section 5 of the Voting Rights Act of 1965. This is the "preclearance" rule that requires targeted states and localities to ask federal permission before they make changes, no matter how minute, in how they conduct their elections.
By authorizing federal supervision of elections, Section 5 was an unprecedented move toward centralization, expanding federal power far beyond what the Constitution permits on its face. Nevertheless, the Supreme Court rejected early challenges to the Voting Rights Act because its purpose was so important: to counter egregious schemes in the Deep South to keep African-Americans from registering to vote.
Moreover, Section 5 was advertised as only a temporary departure from venerable American principles of federalism and local control. The federal government’s intrusion into the management of local elections was supposed to be limited to a period of no more than five years.
However, a half-decade came and went, and Section 5 has been renewed again and again. The current extension, signed by President George W. Bush in 2006, would keep the mandate in effect until 2031 — more than six decades after it was initially supposed to sunset.
Today, federal control is broader than ever, because Congress has expanded Section 5’s coverage to include Native Americans and other minority groups in sections of Alaska, California, Florida, New York, South Dakota, Texas, Michigan and New Hampshire.
Now, the Supreme Court is being asked to do what Congress has resisted doing: Acknowledge the obvious and declare that Section 5 has succeeded, and admit this blunt instrument of federal intrusion is no longer needed and therefore can no longer be constitutionally justified.
All the evidence — inspiring, powerful evidence — argues for ending Section 5 interference with local elections. The unconscionable vote suppression tactics — poll taxes, literacy tests and the like — that were the mandate’s sole justification have long since been eradicated.
Southern states today have a high level of voting by African-Americans as well as large numbers of minority officeholders. In Alabama, Florida, Georgia, Louisiana, Mississippi and South Carolina, between 31 percent and 45 percent of Democratic state legislators are black.
In the case before the Supreme Court, a small utility district in Texas has been subjected to Section 5’s "preclearance" requirements, even though its voting procedures have never elicited any complaints, let alone any lawsuits for discrimination of any kind.
Section 5 simply isn’t relevant to the problems and controversies that surround voting these days: antiquated voting technology, confusing ballot design, long lines at polling stations, inadequate means of checking voters’ identification.
To a great extent, these troubles reflect a failure to update voting processes. In that sense, Section 5 is part of the problem, because its burdensome federal approval requirements hinder modernization.
Arguing to the Supreme Court that preclearance demands are outdated, former Texas Solicitor General Gregory Coleman noted, "The America that has elected Barack Obama as its first African-American president is far different than when Section 5 was first enacted in 1965."
Whatever our political leanings, we can all be proud that voters elected an African-American as our chief executive. We also should be proud that the instruments of discrimination against minority voting have been removed.
Section 5 played a central role in this remarkable progress. The honest — and constitutionally required — way to celebrate is to declare victory and move Section 5 from the statute books to the history books, where its honored place will always be assured.
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