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Tuesday, February 21, 2017
- The U.S. Supreme Court will hear oral arguments Wednesday in a challenge to the constitutionality of key sections of the historic Voting Rights Act (VRA) of 1965.
Numerous organisations are rallying in support of the VRA. Activists across the nation, including Dr. Charles Steele, CEO of the Southern Christian Leadership Conference (SCLC), are traveling to Washington, DC to protest outside of the court.
“Everything has changed, but nothing has changed,” Dr. Steele told IPS.
“Everything has really gone backwards in terms of our successes. If we let this go, if we sit idly by, then we’re destined for failure. We’re not going to rest on our laurels because we have a black president. We’re going to take to the streets and that’s where we’re heading,” he said.
“We’ve got folks in our generation who think we have arrived. I tell you, you think you have arrived, but you got off at the wrong station – you got to get back on the bus,” he said.
Even though black people in the U.S. have ostensibly had the right to vote since 1870 under the 14th and 15th amendments to the constitution, several federal Voting Rights Acts were enacted in 1957, 1960, 1964, and 1965 to address discriminatory election practices at the state and local levels.
Section 5 of the VRA of 1965 is one of the strongest enforcement provisions of the Act. It requires that the justice department preclear any changes to “any standard, practice, or procedure with respect to voting”, including district maps, in any of the “covered jurisdictions”, which include all or part of 16 U.S. states, mainly in the U.S. south.
The case, known as Shelby County, Alabama v. Attorney General Robert Holder, argues that, on its face, the 2006 Congressional reauthorisation of sections of the Act was unconstitutional because it was based on historical data of racial discrimination in election practices that are no longer relevant.
“That’s actually not true,” Lisa Bornstein, senior counsel and senior policy analyst for the Leadership Conference on Civil and Human Rights, told IPS. “We have loads of examples, continuing to this day, there are voting discriminatory practices happening in covered jurisdictions.”
The justice department recently blocked voter ID laws in South Carolina and Texas that, if not blocked, would have been in place during the November 2012 elections.
“Also, there are redistricting efforts. In Texas there was an attempt to redistrict so that Hispanics, who are now 65 percent of the growth, to limit that voting power by the way of redistricting,” Bornstein said.
“Then there’s examples like changing the date of an election, changing the place of an election.
Some of them are done to have a discriminatory impact,” she said.
Examples of modern-day discrimination in covered jurisdictions are in the thousands.
In 2008, the City of Calera, Alabama redrew one of its City Council districts to reduce the black voting population from 69 percent to 29 percent, leading to an incumbent black councilmember, Ernest Montgomery, losing his seat.
The justice department intervened, requiring the city to redraw the lines and hold a new election, in which he was reelected. That action led to the current Supreme Court challenge by Shelby County, in which Calera is located.
In another example, in 2001, the justice department objected after the all-white town government in Kilmichael, Mississippi tried to cancel an election shortly after black citizens had become a majority. When the citizens of Kilmichael finally voted, they elected the town’s first black mayor and three black aldermen.
The Act also provides that covered jurisdictions can petition to “bail out” of Section 5. Beginning in 1982, jurisdictions could bail out if they could prove they had complied with a list of nondiscrimination requirements for 10 years.
In addition, the Act provides that the new jurisdictions can be “bailed in”.
Congress reauthorised the VRA of 1965 in 1970, 1975, 1982, and in 2006.
In 1975, Congress expanded Section 5’s reach to cover jurisdictions that had engaged in widespread discrimination against “language minority” groups.
In 2006, Congress held extensive hearings on the VRA and the continued need for Section 5 today, considering some 15,000 pages of legislative record.
The 2006 reauthorisation was approved 98 to zero in the Senate, and 390 to 33 in the House of Representatives.
The Supreme Court has upheld Section 5 of the VRA several times, including in 1966, in a landmark case, South Carolina v. Katzenbach; and again in 1973, 1980, and 1999.
More recently, in 2009, in Northwest Austin Municipal Utility District Number One v. Mukasey, the Supreme Court issued a ruling expanding the types of jurisdictions that could bail out of Section 5 coverage. The Municipal Utility District had not been previously been considered an independent enough district to be eligible to bail out.
Since that decision, 127 additional jurisdictions have bailed out. “It’s not a particularly onerous process,” Bornstein said.
“That’s part of the beauty of this law and why we believe it’s constitutional. This law allows for flexibility in case there’s overinclusiveness or underinclusiveness, to make sure the law as a whole functions properly,” she said.
In the Northwest Austin ruling, the court acknowledged the progress made in covered jurisdictions since 1965, attributing this progress to the VRA itself, noting that the progress may be “insufficient and that conditions [may] continue to warrant preclearance under the Act.”
The court added that “the Act imposes current burdens and must be justified by current needs.” This language has led some legal scholars and pundits to predict that Section 5 of the VRA might be in danger altogether, especially given the fact that the Supreme Court chose to hear the current case.
But advocates do not believe the section is in danger because they believe the current burdens are met by current needs.
“It would be a big step for the Court to determine that [the reauthorisation was unconstitutional]. Congress has the authority to make this determination. The court cannot second guess if what Congress has done was reasonable,” she said.
As previously reported by IPS, there were numerous voter suppression laws and tactics in place during the November 2012 elections, representing a new generation of Jim Crow laws.
Some of these activities occurred in jurisdictions not covered by Section 5 and did not require preclearance by the justice department. However, Section 2 of the VRA of 1965 allows the justice department to bring case-by-case litigation in non-covered jurisdictions, something Section 5 attempts to avoid in historically discriminatory jurisdictions.