Don’t Use MLK to Push Harmful Election Laws

Based on the reaction of certain elected officials to Shelby County you could be forgiven for thinking that a congressional fix is badly needed to prevent racial minorities from being disenfranchised. But all the Supreme Court did was strike down the “coverage formula” used to apply Section 5 of the Voting Rights Act, which required certain jurisdictions to “preclear” with the federal government any changes in election regulations—even those as small as moving a polling station from a schoolhouse to a firehouse. The Court found the formula to be unconstitutional because it was based on 40‐​year‐​old data, such that the states and localities subject to preclearance no longer corresponded to the incidence of racial discrimination in voting. Indeed, black voter registration and turnout is consistently higher in the formerly covered jurisdictions than in the rest of the country.

Nevertheless, the proposed legislation draws a new coverage formula, resurrecting Section 5’s requirements for states with five violations of federal voting law over a rolling 15‐​year period. (That formula would currently apply to four states: Georgia, Louisiana, Mississippi, and Texas.) It also sweeps in sub‐​state jurisdictions that have had one violation and “persistent, extremely low minority turnout”—which can mean simply an average racial‐​minority turnout rate lower than that nationwide for either minorities or non‐​minorities.

All that sounds reasonable—Congress is finally updating its coverage formula—until you realize that this reimposition of Section 5 comes without any proof that other laws are inadequate to address existing problems (which is what the Constitution demands to justify the suspension of the normal federalism in this area). After all, Section 5 was an emergency provision enacted in 1965 to provide temporary federal receivership of morally bankrupt state elections, not to enable a constitutional revolution based on arbitrary statistical triggers.

In other words, just as the Supreme Court was correct in 1966 to approve the constitutional deviation that preclearance represents as an “uncommon” remedy to the “exceptional conditions” in the Jim Crow South, it was correct now in restoring the constitutional order. And Congress would be hard‐​pressed to enact any appropriate coverage formula now because what the Court called the “extraordinary problem”—the “insidious and pervasive evil” of “grandfather clauses, property qualifications, ‘good character’ tests,” and other “discriminatory devices”—that justified a departure from the normal constitutional order is, thankfully, gone. As Justice Clarence Thomas wrote in another voting rights case in 2009, deactivating Section 5 “represents a fulfillment of the Fifteenth Amendment’s promise of full enfranchisement and honors the success achieved by the VRA.”

The Justice Department’s recent lawsuits against Texas and North Carolina’s electoral changes prove the Supreme Court’s wisdom. They show that plenty of laws exist to combat racial discrimination in voting, and it’s the effectiveness of those laws that have obviated Section 5 (and its coverage formula).

For example, the Voting Rights Act’s Section 2 grants both private parties and the federal government the right to go after state practices that constitute “a denial or abridgment of voting rights.” It empowers citizens to challenge specific instances of discrimination and allows them to recover from defendants the costs of their lawsuits.Section 3, meanwhile, gives courts the power to order federal supervision—including Section 5‑style preclearance—over jurisdictions that have engaged in deliberate discrimination that violates voting rights and are likely to continue this conduct in the absence of that extreme remedy. Shelby County didn’t touch Sections 2 or 3, and there’s no indication that these provision are inadequate to address racial discrimination in voting wherever they may be found.

The main difference between the Section 5 emergency powers and the normal Section 2–3 system is that in the latter, the federal government actually has to prove the existence of discrimination (which is the way every other civil rights law works). If it can meet that standard, it will undermine the claim that the Supreme Court made it impossible to enforce voting rights. If it can’t show that a state or other political body engaged in racial disenfranchisement, isn’t that a good thing?

Alas the Voting Rights Amendment Act would remove this requirement of showing discriminatory intent in order to find technical violations and impose federal control of state electoral systems. (This is on top of reasserting the extraordinary Section 5 powers without any constitutional justification.) That means that the goal isn’t to stop discrimination but, as with the push to enshrine “disparate impact” standards generally, to ensure racial proportionality and expand federal power by eliminating legitimate local procedures.

Other parts of the proposed legislation are of a similar troubling kind, including bifurcating legal standards such that “minority voters” enjoy more protections of their right to vote than “nonminority voters.” If passed, the racial gerrymandering that has done serious damage to how America governs itself—segregating voters and contributing to partisan polarization—will only intensify.

In short, the new “voting rights” bill is worse than a solution looking for a problem; it would make existing problems with voting worse while misallocating resources and inflaming racial tensions. There’s more to be done to achieve racial harmony in America, to be sure, but the best way to honor Martin Luther King is to build on his triumphs rather than pretend that we still live in his era.