A Strong Argument for Keeping Section 5


As the Supreme Court considers whether to declare Section 5 of the Voting Rights Act unconstitutional, Alan Abramowitz offers a very compelling argument for why the preclearance requirement is still necessary even if racism is not the primary reason that motivates illegal voting restrictions.

The five conservative justices on the court, including Chief Justice John Roberts, were clearly skeptical about the continued need for federal supervision of the states covered by Section Five. At one point, Roberts asked whether “the citizens in the South are more racist than citizens in the North.”

Roberts’ question goes directly to what appears to be the central issue in the case — the continued significance of racial prejudice among white voters and political leaders in the states covered by Section 5. The officials bringing the suit to overturn Section 5 and their conservative allies claim that racial prejudice has diminished to the point where federal supervision of state and local governments in the covered states is no longer justified. In support of this argument, they cite the victories of numerous African-American candidates for state and local office and increased turnout rates among African-American voters.

There is no doubt that old-fashioned racism has greatly diminished over the past 40 years throughout the nation and in the states covered by Section 5. However, there are good reasons to be concerned about how a decision to overturn Section 5 would affect the voting rights of African Americans and other minorities in these states — for reasons that are more political than racial. That’s because regardless of whether white political leaders in these states hold racist views, they have substantial political incentives for engaging in actions to suppress or dilute the minority vote.

In addition to a history of racial discrimination, the states covered by Section 5 are characterized by an exceptionally high degree of racial polarization in voting up to the present day. Whites and nonwhites in these states are deeply divided in their political preferences, resulting in a two-party system in which one party depends overwhelmingly on votes from whites and the other party depends overwhelmingly on votes from African Americans and other nonwhites. This racial polarization continues to provide a powerful incentive for leaders of the party that depends overwhelmingly on white votes to suppress or dilute the votes of African Americans and other minorities.

This is exactly right. Even if they’re not racist, Republican leaders have a clear incentive to adopt measures to make it as difficult as possible for minority voters to cast a ballot out of sheer political necessity. And frankly, that may be a more powerful motive, at least subconsciously, than racism. Our brains are rationalizing machines and we are capable of constructing very elaborate justifications for things that are in our best interests. And suppressing the minority vote is clearly in the best interests of Republicans. That’s why we’re seeing so many voter suppression laws all over the country, all based on this trumped-up and virtually non-existent voter fraud problem.

This puts Justice Scalia in a bit of a logical bind as well. Remember, he explicitly said during the oral argument in this case that you can’t leave this kind of thing in the hands of the legislature. But I would be willing to bet that if those voter suppression cases reach the Supreme Court, he will be arguing the exact opposite, that state legislatures should be trusted to make decisions about the extent of voter fraud and the actions necessary to prevent it. Scalia’s advocacy of judicial restraint and deference is nothing if not selective.

Comments

  1. Michael Heath says

    I agree this is a strong argument, but it’s also an obvious one.

    However, I’m still glad it’s getting exposed because it reveals how comments like CJ Roberts, “ . . . the citizens in the South are more racist than citizens in the North.”, is a strawman of the pragmatic premises the court should be considering. Such as the reality Republicans actively seek to suppress the votes of non-white voters.

    This remains one of my favorite arguments on this topic, by a hero of mine, Linda Greenburg: http://opinionator.blogs.nytimes.com/2013/02/20/the-more-things-change/ . I’ve linked to this article in a previous thread in Ed’s venue.

  2. arakasi says

    An argument could be made that due to the changing demographics, then the states and regions referenced in Section 5 are being unduely singled out. The sheer number of voting restrictions that were introduced nationwide during the last campaign season, however, indicates that the solution is to expand the scope of the VRA, rather than reduce or eliminate it. A law that supresses minority votes in Ohio is just as anti-democratic as one in Alabama, so both should have to clear the pre-clearance hurdle.

    Maybe this could be the beginning of unified election standards, although I’m not holding my breath waiting for that.

  3. says

    An argument could be made that due to the changing demographics, then the states and regions referenced in Section 5 are being unduely singled out…

    So let’s expand Secion 5 to cover the entire country. That would wipe out any issues of unequal treatment, without losing an important tool for upholding voting rights. I figure the Supreme Court could do that, given how they mandated school integration back in the ’50s.

  4. Alverant says

    @arakasi
    So since some states are “allowed” to restrict voter rights, all states should have the same right.

    That’s the kind of thing Scalia would say to justify declaring it unconstitutional so Congress would have to resubmit the same bill to cover the whole nation. And we all know that bill will never pass due to filibusters and cons saying it’s not necessary.

  5. greg1466 says

    I’m with arakasi and Raging Bee. It seems that the only real solution is to make all states subject to federal oversight for elections. In fact, it seems like it was really a mistake to not make it that way from the beginning.

  6. Ben P says

    So let’s expand Secion 5 to cover the entire country. That would wipe out any issues of unequal treatment, without losing an important tool for upholding voting rights. I figure the Supreme Court could do that, given how they mandated school integration back in the ’50s.

    Here’s the problem with this. (and I’m trying to make an honest assessment here, not indicating opposition).

    Section 5 is a pretty substantial infringement on state sovereignty in the name of protecting a federal constitutional right. The reason it was structured the way it was initially is because the authors thought that such a scheme could be justified because it was narrowly tailored to apply to states where there was a pervasive history of voting discrimination.

    If you want to go and say every one of the 50 states now has to pre-approve any change to its voting laws and regulations with the justice department solely on the basis there is a potential motive for making changes that, although not discriminatory in intent are discriminatory in effect, I’m honestly not sure you get there.

  7. bobcarroll says

    I’ve been thinking about this for a while now… Would it be possible to extend the law to include not only racial bias, but also any other documented behavior by local officials to interfere with voting rights for any group? This might eliminate the impact of Scalia’s remark that the law represents some sort of racial privilege, as well as including the current situation where the irregularities are not specifically against blacks, but against a number of minorities who might vote predominately Democratic.

  8. says

    In response to Roberts question, yes, I have found that at least in comparing Louisiana to Colorado, the citizens are generally more racist.

  9. says

    It will be super annoying if whole swaths of people lose their right to vote because SCOTUS rules that political discrimination is completely lawful.

  10. matty1 says

    Section 5 is a pretty substantial infringement on state sovereignty in the name of protecting a federal constitutional right.

    Question from an ignorant foreigner, why is state sovereignty a good thing? I can kind of see the argument for levels of government – the right scale to consider refuse collection is not the same as the right scale to consider global warming – but this is a pragmatic thing and not a hard rule.

    I also get that the history of the US means some state sovereignty is a kind of basic assumption in political debate but again that doesn’t get me to why it is desirable that it should be so.

  11. matty1 says

    Could you have a law that says something like.

    “Any change in voting regulations that has any of the following effects needs special scrutiny. The effects being.

    Removing any person from the voter roll or preventing their registering
    Preventing any person from casting a vote on arrival at a polling place
    Reducing the number of polling places or increasing the number of voters per polling place
    Altering the hours of voting – including changes to early voting.”

    Would that be useful?

  12. says

    “Question from an ignorant foreigner, why is state sovereignty a good thing?”

    Just the sort of iggerant kwestion I’d ‘spect from a iggerant furriner!

    Look, commiecollectivist boy, states get to do what states want! The fedrul gummint should NEVUR, EVR make rules for stuff that affects the hole countree! ‘Cept when we’re talkin’ bout bannin’ homosex or other UNGODLY OBAMINATIONS! /s

  13. kermit. says

    Matty1: “Question from an ignorant foreigner, why is state sovereignty a good thing?”
    .
    The states were viewed very much as separate countries 300 years ago – each was its own British colony, with unique histories and natures. The United States was a confederacy, a union of individual entities for the collective military security and economic well-being.Very much like the European Union. Many Europeans think the EU is a good idea, but still think of themselves as British or Swiss first.
    .
    The most conservative of Americans, especially the rural folks whose families may have lived in that state since the inception of the US, are those most likely to value state rights highly. I myself grew up in Missouri, Illinois, New Jersey, and Pennsylvania, and have since lived in Massachusetts, South Carolina, California, and Washington state. I preferred some over others, but can’t really find myself identifying with any particular one of them.
    .

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