Is The Voting Rights Act Doomed?

It has been almost fifty years since the Voting Rights Act was passed in 1965.  It was a landmark in American legislative history, for it intended to stop any further deprivation of voting rights in the African American population.  Nathaniel Persily has reviewed the arguments currently before the Supreme Court regarding repeal of Section 5 of the Act in the New York Times (11.15.12)

The case before the court, coming out of Shelby County, Ala., concerns Section 5 of the act, which requires some states and jurisdictions (mostly in the South) to seek permission from the federal government before they can implement any law related to voting. If a voter-ID law, redistricting plan or other election law is seen as worsening the position of racial minorities, then the Department of Justice or a federal court in Washington will not allow the voting change to go into effect. Earlier this year, for example, a federal court struck down Texas’s recently enacted voter-ID law and Congressional redistricting plan on that basis.

The question before the court is whether or not minority populations in previously offending states still need federal protection.  In 1965 it was felt that such protection was indeed required, for the period of the Civil Rights movement showed undeniably that many of the Southern states were adamantly and violently opposed to full racial equality; and the right of a black man to vote was considered the worst anathema.  Without the federal intervention, it was argued, George Wallace would never have left the steps of the University of Alabama; the March to Selma would never have happened; and ‘Mississippi Burning’ would have been the rule of the South.

Now, after nearly five decades, not only black suffrage, but black political power is the rule.  The percentage of African Americans who voted in 2008 was significantly higher than for whites – 55-49 percent for the 18-24 age group; and 64-62 percent for the 25-44 group (New York Times).  The percentages are slightly lower this year, but still blacks are voting in strong numbers.

The fact that Barack Obama has been elected twice by the American electorate, thanks in large part to a solid black voting bloc, suggests that federal protection might no longer be required.

Those who oppose any amendment to the Voting Rights Act say that without such federal protection, the black vote will decrease because states will revert to their old ways. The furor over voters’ rights during the recent election revived the debate over the continued relevance of the Act.  Many ‘progressives’ insisted that Red States were deliberately manipulating and distorting the electoral process by denying Democratic voters access to the polls.  They contended that since black voters were a guaranteed bloc vote for Obama, the only way Republicans had to ‘gain’ their votes was to deprive them of votes for the President.  The Voter ID laws which were pushed in many states were thinly-veiled attempts by Republicans to deliberately deprive Democrats, especially poor, black Democrats from the vote.

Those arguing for more stringent requirements for voting say that they have been vindicated by repeated instances of voter fraud, the wild-and-wooly frontier voting system in place in most states, and unconscionably long lines at polling stations. 

Relying on this restrictive standard, challengers to the act argue, with some reason, that the list of covered jurisdictions no longer resembles the “America’s Most Wanted” of voting-rights violators that it did in 1965. In recent years we have witnessed one electoral dysfunction after another in jurisdictions not covered by the act, like Ohio and Miami-Dade County in Florida.

In other words, while no one can deny that the electoral system is badly in need of repair; and stricter voting requirements may indeed discourage some voters; it is hard to show that there is a racial element to any irregularity.  While it is true that a higher proportion of black Americans than white have no picture ID, this is more a function of poverty and its attendant characteristics of low educational level, lack of social or geographic mobility, and community dysfunction; and less an issue of race.  This association between race and voting inhibitions is just that – an association not a correlation.

Perhaps what is most objectionable today about the current Voting Rights Act is its enduring paternalism.  It makes the continued assumption that states cannot manage their own affairs, are incapable of real reform on their own, and need the guiding hand of the Federal Government to show them the way.  Even if there is a grain of truth in this; and while racism persists in the South, the changing demographics – illustrated in bright, fluorescent lights this election – will soon have their day.  If minority voters increase as a percentage of Southern states’ populations (which they will as they have done throughout the United States), and if they keep up their high voting percentages, the problem – if there really is one – will solve itself. White crackers may still be enraged by their ‘colored’, but they will increasingly be too few to do anything about it.

The author of this article concludes that Section 5, given the conservative makeup of the Supreme Court, will be overturned; but that Congress should take this as an opportunity to overhaul the electoral system – not just tinker and repair, but completely rethink, revamp, retool, and restructure it to create a more fair and more efficient system:

Congress needs to enact national rules governing voter registration, provisional and absentee ballots, and voter verification and access in a new Voting Rights Act tailored to the problems confronting American democracy today. The Voting Rights Act may have killed off historic barriers to minority political participation, but new challenges emerge with each election cycle.