Debate Club

The Voting Rights Act Doesn't Reflect Current Political Conditions

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Neither minority voting rights nor the ability of the federal government to enforce those rights are at stake at Shelby County v. Holder. Both of those are secure regardless of how the Supreme Court rules in the case.

Instead, Shelby County considers whether the "exceptional conditions" and "unique circumstances" of the Jim Crow South still exist such that an "uncommon exercise of congressional power" is still constitutionally justified—to quote the 1966 Supreme Court that approved Section 5 of the Voting Rights Act as an emergency measure.

That is, while the "historic accomplishments of the Voting Rights Act are undeniable," as the court said 43 years later, the modern use of Section 5—which requires federal "preclearance" of any changes in election law in certain jurisdictions—"raises serious constitutional concerns." Most recently renewed in 2006, the provision adopts flawed assumptions and flies in the face of the 15th Amendment's requirement that all voters be treated equally.

[See a collection of political cartoons on Congress.]

Section 5's preclearance scheme is an anachronism, based on 40-year-old data that doesn't reflect current political conditions. For example, the racial gap in voter registration and turnout is lower in states originally covered by Section 5 than it is nationwide. Blacks in some covered states actually register and vote at higher rates than whites. Facetious tests and sinister devices are now permanently banned—while even individual violations are exceedingly rare and no more likely to occur in Section 5 jurisdictions.

Indeed, the list of Section 5 jurisdictions is bizarre: six states of the Old Confederacy, plus Alaska, Arizona, and parts of states ranging from New Hampshire to South Dakota. Three New York counties are covered, all New York City boroughs. What's going on in the Bronx, Brooklyn, and Manhattan that isn't in Queens or Staten Island? Four justices famously hail from Gotham; maybe they know something we don't.

[Read the U.S. News Debate: Should Photo ID Be Required to Vote?]

Moreover, it is Section 2—the nationwide ban on racial discrimination in voting—that is the heart of the Voting Rights Act. Section 5, meanwhile, was a temporary tool that supplemented Section 2 and overcame "widespread and persistent discrimination in voting"—thus eliminating the extraordinary circumstances that originally justified it.

But three generations of federal intrusion have been more than enough to kill Jim Crow. As Justice Thomas wrote in 2009, an acknowledgment of Section 5's unconstitutionality "represents a fulfillment of the Fifteenth Amendment's promise of full enfranchisement and honors the success achieved by the VRA."

Ilya Shapiro

About Ilya Shapiro Senior Fellow at the Cato Institute

Tags
voters
Supreme Court
civil rights

Other Arguments

#1
31 Pts
Section 5 Is Still Crucial to Maintaining Americans' Right to Vote

No – Section 5 Is Still Crucial to Maintaining Americans' Right to Vote

Wendy Weiser Director of the Democracy Program at the Brennan Center for Justice at New York University School of Law

#2
21 Pts
The Supreme Court Should Side with Congress on Voting Rights Act

No – The Supreme Court Should Side with Congress on Voting Rights Act

David Gans Director of the Human Rights, Civil Rights, and Citizenship Program at Constitutional Accountability Center

#3
15 Pts
Voting Rights Act's Section 5 Still Stopping Discrimination Today

No – Voting Rights Act's Section 5 Still Stopping Discrimination Today

Wade Henderson President and CEO of the Leadership Conference on Civil and Human Rights

#4
2 Pts
Voting Rights Act's 'Preclearance' Was Meant to be Temporary

Yes – Voting Rights Act's 'Preclearance' Was Meant to be Temporary

Hans A. Von Spakovsky Senior Legal Fellow at the Heritage Foundation

#5
-13 Pts
Striking Down Section 5 Would Mark a Return to Constitutional Order

Yes – Striking Down Section 5 Would Mark a Return to Constitutional Order

Edward Blum Visiting Fellow at the American Enterprise Institute

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