[Editor's note: This column is co-authored by Roger Clegg.]
Attorney General Eric Holder has undergone so much criticism in recent months than some in Washington are wondering how long he’ll keep his job. From the unexplained dismissal of the voter intimidation case against the New Black Panther Party (and the stonewalling of requests for information from the U.S. Civil Rights Commission) to the mishandling of the Christmas bomber and KSM terrorism cases, Holder has made multiple, repeated mistakes that could have damaging legal and national security consequences.
But one group that has been unwavering in its support of Holder has been the liberal civil rights organizations that heralded his appointment. Now, however, even those organizations may come to regret Holder’s appointment, because his inept handling of a voting case could lead to the overturning of a part of the Voting Rights Act.
When the Supreme Court heard a constitutional challenge to Section 5 of the Voting Rights Act last year in a case brought by a Texas municipal utility district, the justices were able to avoid deciding that issue by ruling instead for the district on statutory grounds. But a new lawsuit filed on April 7, arising out of a bizarre Justice Department decision in the small town of Kinston, North Carolina, is almost certain to bring the constitutional issue back to the Supreme Court. This time the Court may very well find the statute unconstitutional.
The Voting Rights Act is a complex law that causes a great deal of confusion. Parts of it are permanent – nationwide prohibitions against racial discrimination in voting. Their constitutionality is not being challenged in this case. But what the citizens of Kinston are questioning is the constitutionality of Section 5, which covers only nine states in their entirety and parts of seven other states.
Section 5 was passed in 1965 as an emergency, “temporary” measure that was supposed to expire in five years. But Congress has kept renewing it, most recently in 2006, when it was extended until 2031. Section 5 essentially puts covered states in federal receivership: They cannot implement any changes, no matter how small, in their voting-related procedures until they are approved by the Department of Justice or a federal court in Washington. Also, state and local officials have the burden of proving that the changes do not have the “purpose” or “effect” of reducing the ability of racial minorities to vote.
Section 5 was an unprecedented and extraordinary intrusion into the sovereignty of local governments, but there is no question that something like it was needed in 1965. As Chief Justice Roberts said in the Texas case, discrimination was “rampant” in the South, where local officials engaged in systematic, widespread actions to prevent black Americans from registering and voting. Although this was illegal, many jurisdictions would simply pass new laws or switch to new discriminatory procedures if they lost a lawsuit. Section 5’s preapproval process was intended to prevent that widespread evasion of the law and court-ordered remedies.
Of course, as anyone with any common sense (but apparently not a majority of Congress) knows, we are a much different nation today. No one claims that discrimination has completely disappeared -- but there is no longer the systematic, intentional discrimination by state and local governments in large parts of the country. “Things have changed in the South,” the Court said in the Texas case. “Blatantly discriminatory evasions of federal [court] decrees are rare. And minority candidates hold office at unprecedented levels.”
No one can rationally argue that local governments in Virginia and Arizona, for example, which are covered by Section 5, are so different from local governments in, say, Arkansas and New Mexico, which are not covered, that they should be singled out and the federal government given the extraordinary power to veto legislative changes in those states. And so, last year, the Supreme Court warned that Section 5 now raises serious constitutional concerns.These concerns are heightened when you consider the astonishing fact that states like Georgia and Mississippi are covered based on evidence and election data that are more than 40 years old! When Section 5 was passed in 1965, coverage was triggered by data showing voter registration and turnout of less than 50 percent in the 1964 elections, which was an indication of widespread discrimination that caused extremely low registration and turnout rates by black voters. This was updated to include data from the 1968 and 1972 elections when the law was renewed in 1970 and 1975.
But that coverage formula was not updated to more recent elections in 2006, for the simple reason that members of Congress knew that the covered states would no longer merit coverage. Black voters register and vote at rates as high as or even higher than whites in the covered states, and at higher rates than in noncovered states. There simply is no current evidence of the kind of past discrimination that would justify the continued application of Section 5, a fact that Congress basically ignored in 2006. By the time Section 5 is up for renewal in 2031, states like South Carolina will have been covered based on 70-year-old election returns.
Over the years, the Justice Department’s Civil Rights Division, whose career ranks are filled with left-wing radicals, has also engaged in extremely partisan, ideological administration of Section 5. It has used the constitutionally dubious “effects” test in Section 5 to force jurisdictions to use racial gerrymandering in the redistricting process, making the very concept of colorblind redistricting by local jurisdictions illegal, and turning the ideals of the civil rights movement on their head by pushing those jurisdictions into segregating voters by race.
Such segregation is not only offensive per se, but has divisive and poisonous effects. It discourages interracial coalition-building, marginalizes black politicians (particularly more conservative and Republican ones), polarizes districts and helps polarize parties, and encourages identity politics in an increasingly multiethnic and multiracial society that can ill-afford them.
These consequences cannot be called unintended, nor are the ideological proclivities of the Division’s lawyers a secret. In one case that went all the way to the Supreme Court (where the Justice Department lost), the Court was dismayed at how the Division’s lawyers not only suddenly developed “amnesia” in their testimony about their dealings with the ACLU, but basically acted at the direction of ACLU attorneys. It was a disturbing look into the inner workings of how the Division administers this federal law.
And Kinston, North Carolina provides a particularly stark example of the irrationality of the continued application of Section 5 and the partisanship in the Division’s administration of it. Blacks make up 64 percent of the registered voters in Kinston, and there has been no finding that the town has engaged in any discriminatory voting practices. There are no barriers of any kind to blacks registering and voting in Kinston. In 2008, Kinston residents voted 2 to 1 to change their town elections from partisan to nonpartisan; there were only eight out of 551 localities in North Carolina that held partisan local elections. A majority of the voters in five of the seven majority-black precincts in Kinston voted in favor of the change.
Using federal law to set aside the decision made by voters, including black voters, to change to nonpartisan elections, based on the dubious assumptions of federal bureaucrats about future elections, demonstrates the absurdity of Section 5. So does its application to a jurisdiction in which black voters are not a minority, but are in fact the majority that can completely control election outcomes. There is no doubt that the foolishness of the Division’s objection here will offend a number of the justices on the Supreme Court. The individual plaintiffs could not have a better set of facts for challenging the constitutionality of Section 5 than if Holder had deliberately set about to create a scenario for them. And it is residents of Kinston who have been forced to sue; unsurprisingly, the town council refused to appeal the Justice Department’s decision.
All of the elected members of the council are Democrats -- they were apparently very happy with the objection that overturned the decision of the voters of Kinston. Although the Justice Department will undoubtedly challenge the standing of the plaintiffs to bring this lawsuit, for a court to agree it would have to conclude that the residents of Kinston whose voting rights have been essentially stolen by the Department have no remedy.
One hopes that, when the Kinston case reaches the Supreme Court, the justices will finally do what Congress did not have the courage to do in 2006: Recognize that we are a different country today than we were in 1965, and that the extraordinary intrusion into local sovereignty represented by Section 5 is not only no longer needed, but violates the most fundamental federalism and colorblind principles of the Constitution.