Will Voting Rights Act Be Victim of Its Success?

      Florida enacted a voting procedures law in 2011 that, among 80 changes, cut the time for early voting by half. Evidence in Florida and elsewhere shows that African American and Hispanic voters make more use of early voting than whites.
      The state had to get approval for the changes from the Justice Department or a three-judge federal court in Washington because five Florida counties are covered by the Voting Rights Act’s so-called preclearance requirement. That provision, section 5, currently requires nine states and parts of seven others to get prior approval of any change in voting law or procedures.
      The Justice Department approved 78 of the 80 changes in the Florida law, but the state went to court on the other two, including the change in early voting, when DOJ lawyers kept them under review. The court rejected the change in early voting last summer on the ground that the state had failed to show it would not lower turnout among minorities. Early voting remained a point of contention up to Election Day between Republican Gov. Rick Scott on one side and Democrats and minority groups on the other, but the court’s ruling had the effect of preventing reduced hours in the five affected counties.
      The court’s Aug. 16 ruling in Florida v. United States is one of four 2012 cases that the Obama administration is citing to the Supreme Court in advance of arguments on the constitutionality of the Voting Rights Act this week [Feb. 27] to show that the 48-year-old law still works and is still needed. The administration also used the act to block Texas from enacting a redistricting plan aimed at reducing Latino representation in the state legislature and the state’s congressional delegation. The act also blocked a Texas voter photo ID law and forced South Carolina to tweak its photo ID law to limit impact on minorities.
      Cases such as these — and hundreds of lesser episodes over the past five decades — explain why civil rights experts call the 1965 Voting Rights Act the most effective civil rights law in U.S. history. Ironically, opponents of the law are now citing its very effectiveness as the principal reason why the Supreme Court should either strike down or substantially limit the preclearance requirement.
      The “widespread and ingenious” voting discrimination practiced in the South in the past is now gone, lawyers representing Shelby County, Alabama, told the justices in their brief filed late last year [Dec. 26]. Today, the lawyers argue, the singling out of mostly southern states and counties based on minority voting and voting registration gaps from the bad, old days is unnecessary and — because of federalism concerns — unconstitutional.
      Four years ago, the Supreme Court came close to agreeing. “Things have changed in the South,” Chief Justice John G. Roberts Jr. wrote in Northwest Austin Municipal Utility District No. 1 v. Holder (2009). Improvements in minority voter registration and turnout, increases in the number of minority officeholders, and the elimination of blatant voter discrimination since passage of the Voting Rights Act “stand as a monument to its success,” Roberts wrote.
      All nine of the justices agreed in the case that the preclearance requirement raised a “difficult” question in light of what Roberts called “the principle of equal sovereignty” of the states. But Roberts led eight justices in ducking the issue by allowing the Austin municipal utility district to take advantage of the act’s section 4(b) to “bail out” of the requirement. Thomas, dissenting, said he would have gone ahead and ruled section 5 unconstitutional.
      The ruling was immediately seen as setting the stage for another test case except in the unlikely event that Congress significantly rewrote the law just a few years after reauthorizing it through 2031. Now, the law is before the Court again in a challenge, Shelby County v. Holder, 12-96, brought by a nearly all-white county just outside Birmingham that is supported by a range of conservative experts and advocacy groups and opposed by civil rights organizations.
      Solicitor General Donald Verrilli will be arguing on Wednesday from briefs that tout the success of the law as well as its flexibility. The government’s brief counts 750 section 5 objections from 1982 to 2006 that blocked approximately 24,000 election law changes. Despite overall improvement, the brief notes that section 5 challenges have increased since 1982 in at least two Deep South states: Louisiana and Mississippi.
      The government also stresses that most changes are routinely approved — as in the Florida case. Justice Department questions sometimes prompt jurisdictions to modify changes without protracted controversy. And the bailout provision has allowed 236 jurisdictions to date to get out of the preclearance requirement by showing a clean voting rights record for the previous 10 years.
      Opponents are unmoved. The bailout provision is burdensome, they insist, and subject to revocation on account of new alleged discrimination. And the burdens of the law are now being visited on jurisdictions with voting rights records in some regards better than states that are outside the law.
      Those may sound like policy arguments of the sort left to lawmakers instead of courts, but the Roberts Court conservatives have shown themselves to be no prisoners of judicial restraint in the past. This week, the conservative bloc’s self-restraint will be the key to the fate of a law universally acknowledged to be a monumental success.