Section 5, The Self-Violating Statute

I do not practice voting rights law. I am more or less completely unfamiliar with the pronouncements of any court at any level on the various arcana of what does and does not comply with the provisions of applicable federal and/or state constitutions and statutes which govern the subject. So my ruminations on this subject should be discounted accordingly.

Recently the U.S. Supreme Court heard argument in a case involving Shelby County, Alabama and Section 5 of the Voting Rights Act of 1965. That act was the result of Congress finally getting serious about enforcing the Fifteenth Amendment, which provides that voting rights may not be “denied or abridged” by reason of race. The second section of the amendment provides that Congress may enforce its provisions by “appropriate legislation.” The Fourteenth and Fifteenth Amendments were the so-called Reconstruction Amendments, adopted in response to the Southern states’ “Black Codes,” which were the efforts of the former Confederate states to re-impose, piece by piece, all of the legal disabilities associated with status as a slave, without actually having chattel slavery any more. 

Let’s just say that throughout more or less the entire South, and in more than a few parts of the country that had not been part of the secession, the Reconstruction Amendments were dead on arrival.  The state and local governments’ contempt for those amendments’ guarantees was so blatant that a reasonable person can only conclude that had they had been able to ignore the Thirteenth Amendment as well they would have. The old Confederacy’s bag of tricks to prevent blacks from casting ballots was almost limitless. It ran from outright personal violence to the infamous literacy tests, poll taxes, cock-eyed residency requirements, obscure registration requirements, disenfranchisement for any number of different reasons, and on and on. Among them also were the drawing of voting district and precinct boundaries so as to ensure that blacks, even if they all voted and all voted for the same candidate, would never be in a position to cast the majority of ballots in any single election. At-large districts were a favorite tool, where a densely-populated, largely black area was broken apart and its pieces each lumped in with a much larger, nearly all-white area, so that the whites could and would predictably out-vote the blacks. Poll taxes were outlawed by constitutional amendment, but that only took out one single block from a very strongly built edifice of oppression. 

By 1965 the balance of the country had finally had enough, and the Voting Rights Act was the result. Among its provisions was Section 5, which applied only to certain states, and which subjected all changes in those states’ voting laws, voting qualifications, redistricting, and other related measures to review and pre-approval in Washington (interestingly Congress didn’t even trust the local federal judiciary to have the balls to enforce the act’s requirements). A state or political subdivision or other voting district (such as a school district) which wished to change its voting practices (for want of a more technical description) could either file a declaratory judgment action in the U.S. District Court for the District of Columbia seeking a determination that the proposed changes did not violate applicable law, or it could ask for an administrative review and approval by the U.S. Department of Justice. 

The Voting Rights Act of 1965 came with a sunset clause, but each time it’s come up for re-authorization that’s handily been done. Initially the re-authorization was for seven-year increments, but beginning in the 1970s and then again in 2006 re-authorization has been for 25-year periods. Here’s the text of Section 5 (codified at 42 U.S.C. § 1973c) as it was re-authorized in the 1970s, and remained in force through 2006: 

“Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the first sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the second sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1968, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the third sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General’s failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. In the event the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court.”

 What’s interesting is that neither the declaratory judgment option nor the administrative review option has any preclusive effect upon a subsequently filed lawsuit to enjoin the changes’ effectiveness. But more to the point, let’s focus on what Section 5 prohibits: Changes that “have the purpose [or] have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title.” The test is two-pronged, both subjective (intent) and objective (effect). The situation which must be shown not to be aimed at or effected is the denial or abridgement of the right to vote “on account of race” or contrary to the guarantees of Section 1973b(f)(2). As one might suppose, the courts have not been at a loss to find any number of proposed arrangements either to evidence the intent to diminish voting rights on account of race or to have that effect.

It’s been nearly 50 years since the Voting Rights Act was adopted. Across large areas of the South, voting participation by blacks now closely mirrors that of their white fellow-citizens. Similar proportions of eligible citizens register, and similar proportions of registered voters actually do so. More to the point, black voting participation rates in large areas of the South now exceed comparable measures in many areas of the North, including specifically some areas which are commonly (and justifiably, in many cases) viewed as having been at the forefront of the national struggles to end slavery and a hundred years later to fight for civil rights. Blacks are elected to public office not only by other blacks, but also by whites as well. One thinks of Allen West of Florida and J. C. Watts of Oklahoma. Mia Love in Colorado came within a whisker of winning election to Congress in 2012. There are also whites in Congress who regularly win election in so-called “majority-minority” districts; one thinks of Steven Cohen of Tennessee. If I were more of a political junkie I’m sure I could come up with numerous other examples of each; those are just the ones that come to mind as I sit here on the couch. Racially-motivated voter suppression is now a two-way street. The New Black Panther Party case came out of Philadelphia, and involved armed black thugs intimidating white voters. There was another case – in Mississippi, of all places – in which a black public official got busted for suppressing white votes. 

So you can pardon, perhaps, folks looking around and asking, if voters across the old Confederacy now behave alike, irrespective of race, and participate in the process in ways that are not explicable with reference to race (as opposed to other, legally unobjectionable markers which do happen statistically to correlate with race, such as felony conviction rates, which have a disparately negative impact on blacks’ voting rights in general (in most places felons can’t vote), and black males specifically), why it is that some parts of the country but not others must still go through this pre-clearance nonsense. It’s not as though anyone’s proposing to exempt anyone in any part of the country from the duty to refrain from denying or abridging voting rights on account of race. But why is there still a statutory presumption that governments in some but not other parts of the country are still up to their old tricks, a half-century later? 

But it gets better. The existing Section 5 wasn’t good enough the last time the act was re-authorized, in 2006. Now the text of 42 U.S.C. § 1973c reads like this (new matter in italics): 

(a) Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the first sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the second sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1968, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the third sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General’s failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. In the event the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court.

(b) Any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, to elect their preferred candidates of choice denies or abridges the right to vote within the meaning of subsection (a) of this section. 

(c) The term “purpose” in subsections (a) and (b) of this section shall include any discriminatory purpose. 

(d) The purpose of subsection (b) of this section is to protect the ability of such citizens to elect their preferred candidates of choice.

Pay close attention to new subsection (b) and what it must assume in order to make any sense at all. Anything that has either the purpose or effect of – “on account of race” – diminishing citizens’ ability to “elect their preferred candidates of choice” is declared to violate the strictures of subsection (a). Notice that what’s being aimed at is no longer voting for one’s candidate, but actually electing one’s candidate; it’s the outcome that is now the objective, not the process. Now exactly how can anyone discern that one’s ability to elect one’s “preferred candidates of choice” (by the way that redundant formulation is indication of sloppy logic on the draftsman’s part) has been or may be adversely affected specifically on account of race without assuming that people of specific races must necessarily want, by reason of their race, to vote for specific candidates and not others? More to the point, subsection (b) assumes that a group of three judges sitting in Washington can decide who a bunch of black voters really want to vote for. You have to make that assumption because without it you cannot measure whether something has had the effect of diminishing any group’s ability to elect a candidate (and you have to make the measurement at the group level because no single voter can elect anyone to office).

And here we have the left’s bird-dogging their goal: It’s not that the left objects to blacks’ being denied the right to vote, because they aren’t any more, or at least not because of the color of their skin. What the left objects to is how blacks exercise that right. In the left’s view, a black citizen’s franchise in fact does not belong to him as an individual but merely as a unit of a group which is defined for him – into which he is defined, you can say – by a bunch of guys in Washington. The result is that a black voter who lives in an area where there is a concentration of voters who superficially look like him is going to find himself gerrymandered into a voting district that has been tinkered with, stretched, and twisted to produce a specific pattern of electoral outcomes. It does not matter that he has or may have nothing at all in common – other than his skin color – with the vast majority of his fellow voters in that district, who may live not just miles but hours away from him. His interests, his objectives, his policy preferences, his mode of existence, his life habits, may be entirely at odds with his fellow voters in the district. But a bunch of guys at the DOJ get to decide that, because he is black, he must want to vote for a specific and definable narrow range of candidates, and they – not he – get to decide who those candidates are.

Pray tell me how is that black voter not being denied a reasonable ability to elect his preferred candidates, and when he is lumped in with other voters for no reason but his skin color, how is that denial not occurring on account of his race? We have created the perverse situation where Section 5 effectively mandates its own violation.

Many people who make a habit of reading the Supreme Court tea leaves are cautiously hopeful that Section 5, the constitutionality of which is directly attacked by Shelby County, will be struck down. I am not so hopeful as they. This is the same court, after all, which last year ruled that Congress can tax you for not doing what it cannot constitutionally compel you to do (are we next to see a tax on criminal defendants who refuse to testify? after all, we’re not making them testify against themselves, we’re just taxing them to recover some of the undeniable economic externalities of having to convict criminals without their active cooperation).

Either this country is founded on legal distinctions between groups of people we arbitrarily call “races,” or it is not. If it is, then we might as well have saved ourselves the trouble of a civil war and a civil rights struggle, because this circle will complete itself. If we do not consciously and steadfastly turn our backs on the notion that some groups of people must be treated differently because of arbitrarily-chosen physical characteristics, then eventually we get back to where we were in the 1890s, when Plessy was the law of the land. If it is not so founded, then Section 5 of the Voting Rights Act needs to be composted.

Update [25 June 2013]:  And the ruling is in.  Section 5, at least insofar as it relies on a formula cobbled together in the 1960s, and which no one alleges can still be shown to exist anywhere, is unconsitutional.  Full opinion here.  Haven’t read the full thing yet (Thomas’s concurring opinion is, as usual, the most straightforward of the lot), but the take by the professional tea-readers is that it’s going to be awfully hard for Congress to come up with a formula that will pass muster.  Which means it’s going to be interesting to see Congress try to reimpose the ability for a left-wing bureaucracy to bugger around only those states not likely to vote for Democrat candidates.

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