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March 03, 2013

What The Real Question Is In The Voting Rights Act Case

I made a point of not writing about the Supreme Court arguments on the Voting Rights Act case earlier this week. Why? because I made my points when Section 5 was reenacted as to why it was a particularly wrong-headed thing to do. But law professor and blogger Ann Althouse points to liberal Justice Stephen Breyer summarizing the issue quite clearly and fairly, and so I want folks to see it here.

If you draw a red line around the States that are in, at least some of those States have a better record than some of the States that are out. So in 1965, well, we have history. We have 200 years or perhaps of slavery. We have 80 years or so of legal segregation. We have had 41 years of this statute. And this statute has helped, a lot. So therefore Congress in 2005 looks back and says don't change horses in the middle of the stream, because we still have a ways to go.

Now the question is, is it rational to do that? And people could differ on that. And one thing to say is, of course this is aimed at States. What do you think the Civil War was about? Of course it was aimed at treating some States differently than others. And at some point that historical and practical sunset/no sunset, renew what worked type of justification runs out. And the question, I think, is has it run out now?

And now you tell me when does it run out? What is the standard for when it runs out? Never? That's something you have heard people worried about. Does it never run out? Or does it run out, but not yet?

Or do we have a clear case where at least it doesn't run out now?

Now let's break that one down for you.

Here's the first paragraph.

If you draw a red line around the States that are in, at least some of those States have a better record than some of the States that are out. So in 1965, well, we have history. We have 200 years or perhaps of slavery. We have 80 years or so of legal segregation. We have had 41 years of this statute. And this statute has helped, a lot. So therefore Congress in 2005 looks back and says don't change horses in the middle of the stream, because we still have a ways to go.

Remember -- inclusion was based upon a jurisdiction having less than 50% of eligible voters registered or less than 50% of eligible voters voting in any of the three presidential elections that took place in 1964, 1086, and 1972 (as well as having had certain discriminatory electoral practices defined in the VRA). Congress maintained that standard in the most recent renewal of the preclearance requirement. But remember -- not every state that had slavery or Jim Crow laws was included under the standard, and as Breyer points out, there are many covered jurisdictions today that have better registration and turnout statistics than do many jurisdictions that are not covered by the preclearance requirement. As I noted back when the preclearance requirement was renewed, the decision not to "change horses in the middle of the stream" by updating the elections used to determine coverage means that we will continue using data from an election held when I was a year old until I am nearly 70 years old. And remember -- "changing horses in the middle of the stream" meant using recent elections or applying preclearance to all 50 states rather than using data from elections that brought us Lyndon Johnson and Richard Nixon as presidents.

Which brings us to that second paragraph.

Now the question is, is it rational to do that? And people could differ on that. And one thing to say is, of course this is aimed at States. What do you think the Civil War was about? Of course it was aimed at treating some States differently than others. And at some point that historical and practical sunset/no sunset, renew what worked type of justification runs out. And the question, I think, is has it run out now?

Is it rational to solve the problem of racism and voter discrimination? You bet it is, and I fully support that effort. But that isn't what Breyer is asking, nor is it what the jurisdiction in this case is arguing. The question is at what point it ceases to be rational to employ data from elections between that took place in the 1960s and 1970s to solve the problem of voter discrimination. That was the question I asked repeatedly back when the renewal took place. That changing the data set to contemporary elections or expanding the preclearance requirement to all 50 states were deemed killer amendments shows just how irrational the embrace of the current standard (using data that is four to five decades old) really is.

And now you tell me when does it run out? What is the standard for when it runs out? Never? That's something you have heard people worried about. Does it never run out? Or does it run out, but not yet?

Or do we have a clear case where at least it doesn't run out now?

Breyer's conclusion really frames this one nicely. When does the justification for using data from 1964, 1968, and 1972 run out? And I would add to his question one that is more important -- how can using decades-old data be rationally said to address today's issues? That's why I believe Congress ought to strike down the most recent renewal as irrational and (as it has many times before) invite Congress to try again to draft a statute that meets constitutional muster.





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