An extremely fine line exists between proper federal authority and an imposition upon states’ Constitutional rights, especially when it comes to voting laws. While voter ID and absentee voting laws dominate the media, these are all propelled by one piece of legislation — one that was recently changed: the Voting Rights Act. The effects of this change could be extreme.
In 1965, President Lyndon Johnson pushed the United States forward with the passage of the Voting Rights Act (VRA). Long overdue, this landmark legislation was deemed the turning point in the fight for all-inclusive voting rights. However, buried within this well-intentioned legislation is a coverage formula (outlined in section 4(b) of the law) designed to target states that, as of that time, were believed to have enacted inequitable voting laws. Section 4(b) provides that if the voting and population data of a particular state yields an unsatisfactory result after application of a complicated algorithm, the state would be placed under federal preclearance, meaning that the United States Attorney General would have to approve all voting law changes within a pre-cleared state before that law could be implemented. Masked behind noble intentions, this section unfairly targeted mostly Southern states which had historically cast a majority of votes for Republican candidates, such as Alabama, Georgia, Texas and Virginia.
In June 2013, the Supreme Court, in a close 5-to-4 decision, corrected this inequity when it ruled in Shelby County v. Holder that the coverage formula was unconstitutional. The Court agreed that the formula was based on outdated information and should be discarded, but that Congress should not throw out the idea of reviewing state voter legislation totally. They wanted Congress to go back to the drawing board. However, Congress simply annulled section 4(b), therefore wholly eliminating preclearance of violating states’ voting laws.
The Court’s decision has been roundly criticized as a step backwards in voter’s rights, but such criticism is misplaced. The Supreme Court’s rejection of the formulaic provisions of the VRA will ultimately promote more equitable and inclusive voting rights in those states subject to the statute — in fact, it already has.
Section 4(b) was outdated and unfairly burdened certain states. The jurisdictions targeted by section 4(b) may have been areas of voter suppression in the 60s, but those unacceptable conditions have improved tremendously. For example, according to The Economist, “in 1965 a mere 6.7 percent of African American voters in Mississippi were registered; by 1988 the proportion was 74.2 percent. That year in Louisiana, as in Texas and Georgia in 2004, a higher proportion of African Americans than Caucasians were registered to vote.” Voting rights climates in targeted states have thankfully evolved.
More surprising is the climate of states not covered by the formula. For example, according to a June 2013 New York Times report, Massachusetts, which is not covered by sections 4 of the VRA, had the greatest disparity in registration between Caucasians and African Americans during the 2012 Presidential election. Furthermore, as Chief Justice John Roberts observed in the Shelby County opinion, in the 2012 election, “African-American voter turnout exceeded white voter turnout in five of the six States originally covered.” The nine states under original preclearance simply no longer represent the problems in the American election landscape.
The cataclysmic consequences, which many predicted would flow from the County decision, simply have not come to pass. As we reach the second anniversary of the Court’s opinion, a number of states, including many of those targeted Southern states, have passed laws which have unquestionably benefited all voters, laws such as those permitting online voter registration. Following the Court’s opinion, many of the states formerly subject to the preclearance requirements of the VRA also have enacted other voter related laws which have received wide support. For example, many of these states have enacted voter identification laws designed to prevent fraud in elections. The Washington Post has reported that 75% of Americans support the notion that photo identification ought to be a prerequisite to vote. The presumption made in many circles that states formerly subject to section 4(b) would, after the Shelby County opinion, enact laws suppressing the right to vote, particularly among minority communities, has simply proven to be false.
What we see instead is that states with no preclearance requirement have witnessed poor voter outcomes. This begs the question: If preclearance set Southern states on a path towards successful polling practices, then shouldn’t all states be placed under preclearance? If yes, then Congress ought to redesign section 4(b). If 4(b) is not the reason we have seen change, then states should be given the right to decide their own fate. Sometimes, the states have it right and federal intervention is not necessary. Yet perhaps federal intervention is needed when it comes to a right as fundamental as suffrage. It is up to us to decide.
