[EL] Sections 4 and 5 of the VRA are artifacts of US history, not all-purpose anti-discrimination measures

[James Blacksher]

Rick Pildes is fundamentally mistaken about the purpose of Sections 4 
and 5 of the Voting Rights Act.  They were never intended to place 
preclearance requirements on states and jurisdictions that were engaging 
in measurably more voting discrimination than were other states and 
jurisdictions.  As South Carolina v. Katzenbach explained, the 
jurisdictions the Section 4 formula was designed to cover were the 
former secessionist states who after the Civil War embedded white 
supremacy and black disfranchisement in their constitutions, statutes, 
and official political cultures.  These were the institutional 
conditions that had proved impervious to ordinary federal enforcement 
measures.  Congress did not find – either in 1965 or in 2006 – that 
whites in the South were more racist (whatever that means, Mr. Chief 
Justice) than whites elsewhere in the US.  Indeed, as we know, the 
Fifteenth Amendment was enacted to enfranchise blacks in the North. 
Freedmen in the South were already enfranchised by federal statute.

So the question before the Court in Shelby County v. Holder should be 
whether Congress had reason to conclude that the institutional policies 
and practices of the Southern states that historically were designed to 
exclude or to minimize African Americans’ participation in the political 
process have been eliminated or reformed to the extent practicable and 
whether they are not likely to return once preclearance of voting 
changes is no longer required.  The comparison of incidents of voting 
discrimination in the South and voting discrimination elsewhere has no 
relevance to the question whether Sections 4 and 5 are still appropriate 
measures for enforcing the Fifteenth Amendment.

Jim Blacksher


>
> The following is a guest post from *Rick Pildes*:
>
>     In light of today’s oral argument concerning the constitutionality
>     of Section 5 of the VRA, I remain deeply disappointed that Congress
>     did nothing in 2006 either to update the scope of Section 5′s
>     coverage or to explain why it continued to make sense to continue to
>     cover all the areas (and only the areas) first put under Section 5′s
>     unique regime in the 1960s (or, at latest, 1975).  Congress’ failure
>     to do so now appears likely to be the basis for a Supreme Court
>     decision that will hold Section 5 unconstitutional, to the extent
>     oral argument foreshadows outcomes.
>
>     The House did not even consider evidence comparing race and voting
>     issues in the covered and non-covered jurisdictions; it did not seem
>     to consider these comparisons necessary or relevant.  The Senate
>     Judiciary Committee was certainly told in 2006 that the failure to
>     update the Act would put it in constitutional jeopardy.  But even
>     there, the only major piece of evidence comparing the covered and
>     non-covered jurisdictions before the Senate was “the Katz study,”
>     <http://sblog.s3.amazonaws.com/wp-content/uploads/2012/09/Katz-cite.png>
>       not designed for this purpose in the first place, and which
>     subsequent academic work (here
>     <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=977271>, here
>     <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1142986> and
>     here <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1260998>)
>     has shown does not provide significant evidence that distinguishes
>     between the covered and non-covered areas.  To be sure, meaningful
>     distinctions might exist between covered and non-covered areas, or
>     between some of the covered areas and those not covered.  But the
>     record before Congress was simply not constructed with this
>     comparative question very much in mind, let alone with that question
>     being a central focus of the congressional process.
>
>     So why did Congress not look in more detail at what was going on in
>     both the covered and non-covered areas and modernize Section 5,
>     instead of simply extending Section 5 for another 25 years unchanged
>     in coverage?
>
>     The actual answer is realpolitik:  it was politically easier for
>     Congress to simply reaffirm the status quo, rather than confront the
>     difficult policy and political questions posed by making judgments
>     about where problems of race and voting rights were most acute today
>     (are Ohio and Pennsylvania similar today to Virginia and North
>     Carolina?).  As I wrote at the time in the /Yale Law
>     Journal/ online, in a short essay
>     <http://http/yalelawjournal.org/the-yale-law-journal-pocket-part/election-law/political-avoidance,-constitutional-theory,-and-the-vra/> called
>     /Political Avoidance, Constitutional Theory, and the Voting Rights
>     Act/, by failing to update the Act:
>
>     /Congress has, whether intentionally or not, in effect thrown down a
>     gauntlet to the Court. The renewed VRA . . . makes no concessions to
>     the[Court's] post-1982 /Boerne/ doctrines nor to the social,
>     political, and institutional changes since 1982. . . .  Section 5
>     stands at the intersection of race-conscious policymaking and
>     federalism, the latter in the unique context of regionally specific
>     legislation; in each of these domains, the Court has insisted  that
>     legislation rest on an adequately documented
>     foundation. [R]ealpolitik provides the best explanation for why
>     Congress left the VRA’s essential structure and coverage unchanged.
>     The question waiting in the wings is whether realpolitik provides an
>     adequate justification when the Supreme Court confronts the
>     inevitable constitutional challenge to the power of Congress to
>     reenact the distinct coverage regime of section 5 for another
>     twenty-five years./
>
>     Similarly, Professor Nate Persily, writing
>     <http://yalelawjournal.org/the-yale-law-journal-pocket-part/election-law/the-promise-and-pitfalls-of-the-new-voting-rights-act-%28vra%29/>about
>     the legislative process in 2006, concluded that any debate “about
>     the purpose and utility of section 5 itself . . . likely would have
>     led to the complete unraveling of the bill.”
>
>     If today’s argument accurately predicts the outcome, it seems to
>     suggest that realpolitik is going to be an insufficient explanation
>     to meet a majority of the Court’s judgment about what constitutional
>     doctrine requires in this area.
>
>     Rick Pildes
>

-- 
James U. Blacksher
P.O. Box 636
Birmingham, AL 35201
phone: 205-591-7238
fax: 866-845-4395