This column by ACRU General Counsel and Senior Fellow for the Carleson Center for Welfare Reform (CCWR) Peter Ferrara was published June 26, 2013 on The American Spectator website.
Section 2 of the Voting Rights Act bans any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen… to vote on account of race or color.” After yesterday’s Supreme Court decision in Shelby County v. Holder, that is still the law in America, in every state in the country.
What was struck down yesterday was another component of the Voting Rights Act, embodied in Sections 4 and 5. Those sections have always been such a broad, fundamental departure from the Constitution that they were barely constitutional when adopted in 1965. But they were justified then by the fundamentally immoral and uncivilized racial practices still going on in too much of America at the time.
The long and extremely bloody Civil War, with 650,000 dead and wounded, which would be the equivalent of nearly 6 million today, achieved the abolition of slavery. But in most of the former slave states, that was replaced by the evils of segregation, which denied blacks most of their constitutional rights, including the right to vote.
Blacks were prevented from voting in these jurisdictions by various means, such as literacy tests (how could blacks pass them when they received no significant education in these jurisdictions?) and poll taxes. The Voting Rights Act was passed in 1965 to finally end this racial apartheid in America, at that late date.
Sections 4 and 5 of the Act applied to states and localities which in 1965 still had exclusionary voting tests and devices, resulting in lower voter registration and turnout among blacks. The provisions ultimately covered 15 states, including non-Southern states such as Alaska, Michigan, and New York, along with dozens of additional cities and counties.
In these covered jurisdictions, any change in voting procedures at all had to be pre-approved, or “pre-cleared,” by federal authorities in Washington, primarily the Justice Department. That meant everything, even moving a voting place by 20 feet.
Such a law was always fundamentally problematic under the Constitution, which explicitly grants authority over qualifications for voting, and voting registration and procedures, to the states. In addition, in one of the highlights of yesterday’s ruling, the Court explicitly cited the too often ignored Tenth Amendment, which reserves to the States all powers not specifically granted to the Federal government, including “the power to regulate elections.” The Court yesterday also emphasized the “fundamental principle of equal sovereignty” among the States, which the Court has long noted is highly relevant in assessing disparate federal legal treatment of States, such as under the Voting Rights Act.
In 1965, departure from this fundamental constitutional architecture was justified by the moral crisis reflected in the disabling official government racial discrimination of the time. But the immoral laws and government practices of that time have gone their way over the last 40 years. Today, black voter registration and turnout are equal to or in some jurisdictions even exceed white voter registration and turnout. Black mayors and public officials now govern and serve in the very same cities in the Deep South where civil rights protesters were killed in the 1960s. Today, the nation is governed by a black President, twice elected and politically favored because of his race, and a black Attorney General.
The news was dominated yesterday by talk of Congress needing to act quickly to restore the struck down provisions of the Voting Rights Act. But what and where are the official governmental legal practices and conditions today that would justify such a radical departure from the basic constitutional framework?
Anything the Congress does still must be constitutional. As the Court reiterated yesterday, the Voting Rights Act “imposes current burdens and must be justified by current needs” and that “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” The Court explained its decision, and the applicable constitutional law, in these words
But history did not end in 1965. In assessing the “current need” for a preclearance system treating States differently from one another today, history since 1965 cannot be ignored. The Fifteenth Amendment is not designed to punish for the past; its purpose is to ensure a better future. To serve that purpose, Congress–if it is to divide the States–must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.
In short, there is no basis today for any law that treats some states differently than others. The Supreme Court would rightly just strike down again what the currently irrational John Lewis demands that Congress do now, and rightly so.
Congress can and should examine closely whether any current practices prevail anywhere in America that do exclude minorities, or anyone else, from voting. Congress can and should then ban such practices nationwide.
Some tried to argue yesterday that states today passing, or trying to pass, voter ID laws are evidence of continuing discriminatory voter suppression in those states. But the Supreme Court itself has already ruled voter ID constitutional. Those cases included definitive evidence showing increased minority voter registration and turnout after those laws were passed. Those laws are not going to amount to conditions justifying a renewed radical departure from the basic constitutional framework. It would make more sense for Congress to require voter ID laws in every state, by constitutional amendment if necessary.
Republicans need not be defensive about yesterday’s Supreme Court ruling. The Republican Party was founded to end slavery, and it did, with no help from Democrats. And it was the Republican Party that supported civil rights laws in the 1950s and 1960s, to end the continuing vestiges of slavery, often over the opposition of Democrats.
America is plagued by an infection of scandalous low information media commentators, in broadcast and in print, who make careers out of misleading and manipulating low information voters. That makes it difficult to discuss almost any political issue rationally, especially when some of them have made whole careers solely on the innovation of lapsing into name-calling based on race. There is a whole broadcast network devoted to such low brow political commentary, devoted religiously to bringing America down into the degradation of socialism.
Yesterday, NBC News Chief White House correspondent Chuck Todd said on MSNBC that Congress is not “mature enough” to deal with fixing the Supreme Court ruling. But Chuck Todd is not mature enough to be a national broadcaster. The coverage of this case yesterday mostly just reflected a crisis in American media. That crisis, and what can be done about it, we’ll discuss next week.