Five months later, the Voting Rights Act of 1965 was passed. Section Five of the Act requires that states and some municipalities with a history of discrimination in voting rights get “pre-clearance” from the Department of Justice prior to enacting any change affecting citizens' voting rights. This means that potential infringement on minority’s voting rights are curbed before the harm occurs. The burden is on the state entity to disprove infringement, rather than on the individuals to seek remedy afterwards.
That section is now being challenged in the Supreme Court, in Shelby County v. Holder. To hear the conservative Justices question Donald Verrilli, the solicitor general defending the law in Wednesay’s oral arguments, Section 5 is archaic and discounts the progress made in the arena of racial justice. Although Congress reapproved this law in 2006, the conservative half (+1) of the Court pressed hard on what they saw as the inadequacy of the evidence supporting an ongoing need for this act.
In an editorial published today by Washington Post columnist George F. Will, a similar strain is heard: the election of Barack Obama and his capture of a larger percentage of the white vote than either John Kerry or Al Gore, plus the sheer number of black elected officials in Mississippi, tell the true story of racial equality in voting rights in this country. He scorns progressives for being "remarkably uninterested in progress" (citing Medicare as an example of a similar rigidity). Frank C. Ellis, attorney for Shelby County, has said: "I think we’ve proven that the south has changed. We’re not the same South we were in 1964; we don’t have the blatant discrimination that we had in 1964."
But the insistence that racial equality has rendered excessive Section Five’s dictate that the state, not individuals, bear the responsibility for disproving a presumption of racial impact of voting laws, is undermined by ample evidence: attempts to restrict the rights of minority voters have ramped up, not down, in recent years. The Brennan Center for Justice in 2012 released a large scale voting rights report detailing the disparate impact on minority groups by various states’ voter ID laws.
The voter ID laws require documents which one in ten eligible voters do not have. The Brennan Center’s report focuses on the prohibitive difficulty faced by voters in poor and rural (often both) areas in obtaining the required documents.
In the real world, poor voters find shuttered offices, long drives without cars, and with spotty or no bus service, and sometimes prohibitive costs. For these Americans, the promise of our democracy is tangibly distant. It can be measured in miles.
In Alabama, Mississippi and and Georgia, “in the areas with the greatest concentrations of rural black voters, no state driver’s license offices are open more than two days per week…. [M]any of these states’ part-time offices are located in the areas with the highest concentrations of black voters.” In Texas, areas “with high concentrations of Hispanic voters, [have] few or no ID-issuing offices.” All four of these states are currently subject to the pre-clearance requirement under the Voting Rights Act.
In Calera, Alabama (in Shelby County), Councilman Ernest Montgomery serves as the only black Council member. In recent years, he watched as the city of Calera redrew his district, severely reducing the black vote. Per Section 5, the DOJ intervened, the redistricting was blocked, and Councilman Montgomery was reelected. It has been pointed out in recent days, too, that the Hispanic population of Shelby County has increased by nearly 150% since the last Census.
In Calera, Alabama (in Shelby County), Councilman Ernest Montgomery serves as the only black Council member. In recent years, he watched as the city of Calera redrew his district, severely reducing the black vote. Per Section 5, the DOJ intervened, the redistricting was blocked, and Councilman Montgomery was reelected. It has been pointed out in recent days, too, that the Hispanic population of Shelby County has increased by nearly 150% since the last Census.
To define the progress of voting rights through the narrow lens of the number of black officials, or the access to that office by a single black man, is to deny the adaptive skill of those seeking to suppress voting rights. Shelby County’s history makes its actions in the realm of voting rights presumptively suspect – and this should include the very legal challenge the Court now addresses. The hope of the petitioners in Shelby County v. Holder is to dismantle the most protective portion of the Act. The recent redistricting should not be divorced from the history of black voter suppression; and nor should Shelby County v. Holder be considered as apart from the recent slew of restrictive voter ID laws. It is another tactic in the larger battle, and should be treated skeptically.
Another puzzle is even if we are making progress -- of course electing the country's first Black president is progress in some traditional understanding of that word -- why does progress necessarily translate into the need, indeed the need to spend enormous amounts of money to litigate, to dismantle a law that is at its core protective? As you say, the decision to bring this case to federal court in itself is indicative of how unsettling the rhetoric of "post-racial" times are.
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