Why Are Conservatives Trying to Destroy the Voting Rights Act?
When he began working on the 2006 reauthorization of the VRA, Representative Sensenbrenner knew that a court challenge was coming. “That’s why we held extensive hearings and compiled 12,000 pages of testimony,” he said. “There was a lot of invidious discrimination shown.” Congress held twenty-one hearings over ten months, compiling a voluminous record documenting modern-day voting discrimination. Sensenbrenner called it “one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the twenty-seven and a half years that I have [served].”
That evidence persuaded Congress to emphatically reauthorize the act. In states like Virginia, Texas and Florida, minority voter registration and turnout rates lagged well behind that of whites. Three of the original six states covered by Section 5—Mississippi, Louisiana and South Carolina—had never elected an African-American to statewide office. The attorney general blocked 2,400 discriminatory voting changes based on 750 Section 5 objections from 1982 to 2006. Clearly, voter suppression efforts had endured into the twenty-first century. Justice Souter likened it to pouring “old poison into new bottles.”
Adegbile’s favorite example was in Kilmichael, Mississippi, where the white mayor and all-white board of aldermen of the newly majority-black town canceled local elections in 2001 rather than cede power. The Justice Department forced the town to hold elections, and three black aldermen and the city’s first black mayor were elected as a result. “Congress was asking the question ‘Where are we?’ in 2006,” Adegbile says. “And their answer was, ‘We’ve made a lot of progress—but while we’ve cut the weeds, lots of the roots are still there. And if we don’t continue the remedy, the roots will grow back.’”
The South had not been reformed to the extent that opponents of Section 5 claimed. University of Michigan law professor Ellen Katz analyzed Section 2 lawsuits in the covered versus noncovered jurisdictions and found that more than half the successful lawsuits originated in regions subject to Section 5, which made up less than one-quarter of the US population. A study conducted by historian Peyton McCrary, who works for the DOJ, found that 81 percent of successful published and unpublished Section 2 lawsuits originated in Section 5 jurisdictions.
During the 2006 congressional debate, Southern conservatives were unhappy that their states were still subject to Section 5. Georgia Representative Charlie Norwood offered an amendment that would have exempted the entire Deep South and covered only Hawaii, a state with no history of racial discrimination in voting. The amendment was defeated 318 to 96.
Changing the places covered by Section 5 would have blown up the entire bill. There was no political will or necessity to expand Section 5 nationwide, and “no objective statistical criteria could have added the most recent bad actors (Ohio and Florida) to the list of currently covered jurisdictions,” wrote Nate Persily, a law professor at Columbia University. “The fact that Section 5 was geographically targeted has always been seen as one of its constitutional saving graces.” The statute is intentionally narrow and deep rather than shallow and wide.
Prior to the NAMUDNO case, Section 5 had been upheld each time it was challenged before the Supreme Court—in 1966, 1973, 1980 and 1999. That pattern has continued, in the lower courts, with the Shelby County case. “This Court finds that Section 5 remains a ‘congruent and proportional remedy’ to the 21st century problem of voting discrimination in covered jurisdictions,” wrote District Court Judge John Bates, a George W. Bush appointee, in September 2011. “Congress determined that ‘40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment.’”
The tide of voter suppression during the last election cycle makes the case for Section 5 even more persuasive. As Holder put it, “Even today, too many citizens have reason to fear that their right to vote, their access to the ballot—and their ability to have their votes counted—is under threat.”
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