No, the Voting Rights Act is not in danger

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How many times have you heard that Republicans want to “disenfranchise” minority voters? Or that the conservatives on the Supreme Court have “gutted” the Voting Rights Act? Or that Congress might not “renew” its protections? Or that states that require voter ID or reduce the numbers of days of early voting are part of an attack on voting rights?

If you are unfamiliar with the specifics of the Voting Rights Act (VRA), the “voting rights are under attack” narrative may have seeped into your consciousness. But the truth does not even remotely resemble what you have likely heard. If the issue of voting rights were fairly reported, none of the following would come as a surprise:

The Voting Rights Act permanently prohibits discriminatory voting procedures across the nation. 

The Voting Rights Act is permanent, and it applies nationwide.   

The key provision of the VRA prohibits any jurisdiction from implementing any “voting qualification or prerequisite to voting, or standard, practice, or procedure … in a manner which results in a denial or abridgement of the right … to vote on account of race,” color, or language minority status.

There it is, folks — discriminatory voting procedures are illegal across the nation. And this provision is permanent and does not need to be “renewed.” Plain and simple.

The “special provisions” of the Voting Rights Act were temporary when passed.  

But some portions of the VRA were not intended to be permanent. These are the “special provisions” enacted as emergency measures in 1965 to deal with recalcitrant Southern racists.

Back then, voting rights enforcement in some parts of the South resembled a game of “whack a mole.” No sooner did a court enjoin a discriminatory voter qualification (e.g., a literacy test enacted for the purpose of keeping blacks from the polls), than the jurisdiction would enact a new discriminatory device (maybe a “grandfather” clause restricting voting to those whose ancestors could vote).

In response to this type of resistance, Congress adopted “special provisions” that, essentially, required the recalcitrant jurisdictions to seek approval (known as “preclearance”) from the Justice Department or a federal court prior to making any changes in voting procedure. In a covered jurisdiction, everything — from the location of a polling place to the number of seats on a school board — was subject to federal approval. No change could go into effect without “preclearance.”

These were desperate measures for desperate times. The were not intended to last for generations — they were intended to be temporary and to expire in 5 years – in 1970.

The formula dictating what parts of the country were “covered” by the special provisions never made complete sense, and was never updated.   

The original formula for determining which jurisdictions should be covered was always imprecise. Under the law, jurisdictions that registered fewer than 50 percent of voters, had less than 50 percent turnout in the 1964 Presidential election, and used certain “tests or devices” (e.g. literacy tests) were presumed to be discriminating, and were thus “covered” jurisdictions.

But the “special provisions” of the Act — the sections that prohibit certain jurisdictions from changing their voting rules unless the Justice Department signs-off — were enacted to fight 1960s style racism and were intended to be temporary.

Given the history of civil rights resistance in the South, it was not surprising that many states of the former Confederacy were covered by this formula. But the imprecision of the formula also meant that Tennessee and Arkansas were not covered, while some townships in New Hampshire and New York were. Moreover, in time, the voting rights record of certain “covered” jurisdictions have become virtually indistinguishable from, or better than, the non-covered jurisdictions.

Notwithstanding the temporary nature of the special provisions of the VRA, they were renewed in 1970, and have been periodically through the years — most recently in 2006. But the last hard data used to determine which jurisdictions are covered comes from the 1972 presidential election. Thus what was a strange “coverage map” to begin with is now wildly outdated (an 18-year-old voter in 1972 is over 60 today, and every voter today under 43 wasn’t yet born in 1972).

In 2013, the U.S. Supreme Court held in Shelby v. Holder that the special provisions, which treated some jurisdictions differently than others, could not be constitutionally justified today on the basis of decades old election data. If Congress wants to extend the special provisions and draw a new map based on current data, it is welcome to do so, the Court noted, but it cannot justify selective federal intrusion today based on decades old conduct.

Not every change in election law is a “return to Jim Crow.”   

Because the “coverage map” was struck down, special preclearance provisions of the VRA are no longer operative (unless Congress agrees on a new “coverage formula”), all jurisdictions are now on equal footing — free to adopt their own election laws and procedures, but subject to suit should they discriminate. This makes sense and is consistent with the principle of non-discrimination enshrined in American law.

But some politicians decry the Court’s decision and the South’s new found ability to make simple changes without DOJ approval. Thus Hillary Clinton, who hails from New York, a state that does not offer early voting opportunities, complains that a reduction of the number of early voting days in North Carolina violates the VRA.

So, if I get this right, it is discriminatory for Southern states to offer seven days of early voting, but it is perfectly fine for New York or Massachusetts to offer zero days of early voting?

Similarly, reasonable voter ID requirements, which have been adopted in Rhode Island without federal challenge, have been the subject of DOJ intervention in Texas, notwithstanding the Supreme Court’s ruling that other Voter ID laws are permissible (and the lack of evidence that anyone in Texas that wanted to vote was unable to get a Voter ID). Of course, if a particular law did discriminate, it would be overturned by a federal court.

But proving a federal case of discrimination takes time — and evidence (two things that many activists simply do not have).

Is it any surprise, then, that they’d rather be able to block any change preemptively, as the DOJ could do in covered jurisdictions prior to the Court’s 2013 ruling?

So the good news is that the VRA is alive and well, covers the entire country, and protects everyone — regardless of race — from actual discriminatory voting procedures and practices. The bad news is that the Democratic Party pretends that this in not so, accuses anyone who questions the need to re-impose “special provisions” on certain jurisdictions of racism, and the media plays along.

Consider that the next time you hear the Voting Rights Act is under assault.

Robert N. Driscoll, former Chief of Staff of the Civil Rights Division at the Department of Justice, is a native of the Boston area who currently practices law in Washington, D.C. The views expressed in this column are his own and not those of his firm. Nor are they the views of his wife, daughters, or greyhounds.  

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