02/21/13: Fending off discriminatory voting practices

This op-ed appeared in The Virginian-Pilot on the date shown.

ONE OF THE MOST important pieces of legislation to come out of the civil rights era was the Voting Rights Act of 1965. It outlawed discriminatory practices that had prevented blacks from voting.

Prior to passage of the act, the Department of Justice used the 15th Amendment as a basis for litigation against those practicing discrimination but found it inadequate; as soon as one practice or procedure would be declared unconstitutional, a new one would pop up, requiring additional litigation.

Section 2 of the Voting Rights Act prohibits discrimination in voting. That part of the law is permanent and covers the entire country.

Section 5 is where all of the action is. This part of the law requires pre-clearance of any voting changes in covered jurisdictions, which includes most of Virginia. It initially had a sunset date of five years, but has been extended several times, most recently in 2006. That extension — for 25 years — enjoyed broad bipartisan support; the House of Representatives voted 390-33 in favor and the Senate 98-0.

Since its last extension, Section 5 has been used to block redistricting plans in Texas and to deny voter identification laws in South Carolina and Texas. Virginia’s existing voter ID law, which allowed for non-photo IDs, was pre-cleared by the Justice Department.

The changes to the state’s voter ID law currently winding through the General Assembly will be subject to review before being implemented. Same goes for the re-redistricting plan of Virginia Senate Republicans. Although the measure is dead for this session, Senate Majority Leader Tommy Norment vows to reintroduce it and have it in place in time for the 2015 elections.

One of Section 5’s problems is that it doesn’t apply nationwide. Pennsylvania, Indiana and Ohio are among the states not covered where strict voter ID laws have been enacted. Although such provisions could be challenged under Section 2, the burden to prove discrimination would fall on the plaintiffs, not on the governments that had enacted such laws. And the challenge can only come after the offending law is enacted, after its effects can be proven. Such lawsuits are also extremely expensive.

But complying with Section 5 can also be expensive. South Carolina, for example, estimated that getting pre-clearance for its voter ID law would cost $1 million. In the end, it cost $3.5 million. In these days of tight state budgets, that is not insignificant.

Reliance on Section 2 may be the only remedy left after the U.S. Supreme Court rules on a case to be heard this month.

In Shelby County v. Holder, the court will hear a challenge to Section 5, and many are predicting that the provision will not survive.

Part of the argument is that such a provision is unnecessary in an era in which a black man has been twice elected president. Another part points directly to the lack of broader coverage, based primarily on the failure of Congress to update the formula for determining coverage at the time the act was last renewed.

If Section 5 is upheld by the Supreme Court, the issues raised in the case from Shelby County, Ala., will not go away. Congress needs to do its job and update the coverage provisions. The old South isn’t the only place where the potential for discriminatory voting practices exists. And the Justice Department needs to figure out a way to make compliance less costly by streamlining the process.

In a perfect world, the 15th Amendment would be sufficient to bar discriminatory voting practices. Unfortunately, we live in an imperfect world, where politicians will undertake whatever means necessary to maintain power.