Sunday, Jun. 28, 2009

Congress can fix its mistakes on Voting Rights Act

All of the justices of the Supreme Court agreed Monday that parts of the antiquated Voting Rights Act pose significant constitutional problems.

Though the court punted on the huge constitutional issues at stake, the opinion penned by Chief Justice John Roberts echoes the warnings I gave fellow House members in 2006 when Congress renewed the 1965 Voting Rights Act for another 25 years.

On a court that could split 5-4 over the color of the sky, all nine justices agreed that Section 5 of the Voting Rights Act imposes severe “federalism costs.”

“These federalism costs have caused Members of this Court to express serious misgivings about the constitutionality of Section 5,” wrote Roberts in Northwest Austin Municipal Utility District Number One v. Holder.

Justice Clarence Thomas went one step further, outlining clearly why Section 5 now fails the test of constitutionality.

Section 5 of the VRA requires some or all of fourteen (mostly Southern) states with a history of racial discrimination to get all electoral law changes pre-approved by the U.S. Department of Justice before they take effect. This approval process has been required for every change for most of these states since 1965.

I fought vociferously as a member of the House to modernize the Voting Rights Act during the 2006 renewal to avoid this constitutional quandary. In closed-door meetings, in open committee hearings and on the floor of the House, I begged and pleaded with my colleagues to change the law to reflect today’s new realities, or else face the prospect of the court tossing it out.

Proponents of renewal said they had “15,000 pages” of evidence of “ongoing discrimination.” What a joke. You pay lawyers by the hour and they can produce 15,000 pages arguing against the laws of gravity. What they produced were mostly old, isolated stories that was grasping at straws, not showing patterns of discrimination.

I argued that in order to prove that covered states still needed to be treated differently by the federal government, the Congress had an obligation to prove that covered states were more likely to discriminate than non-covered states. Eight justices staked out a similar position, saying “[T]he [Voting Rights] Act imposes current burdens and must be justified by current needs.”

But the Congress didn’t lift one regal finger to investigate voting rights problems in any non-covered state despite massive legal and demographic changes throughout our country since LBJ’s administration. This means any new voting problems that have cropped up in recent years in, say, Ohio or Florida go unaddressed.

When the Voting Rights Act was passed in 1965, it was needed to correct horrible, widespread injustice. Congress created a formula to determine which states were suppressing the votes of minorities. Nearly all of the Southern states, including my home state of Georgia, failed the test and came under Section 5.

This was an “emergency” measure to stop the systematic suppression of African-Americans’ right to vote; it was supposed to expire in 1970.

Here we are 44 years later and the “emergency” still exists and will last through 2031? Please. To think such a thing, you’d have to consider the VRA a complete and total failure. You’d also have to be willfully ignorant of the astounding progress that has transformed today’s South.

Now that Congress knows that Section 5 is on shaky ground, it should reconsider amendments put forth by the late Rep. Charlie Norwood, R-Ga., and me in 2006.

First, Congress could mandate that the Department of Justice determine which states or counties have long records of voter equality. These jurisdictions would then be freed, or “bailed out,” of Section 5 coverage (just as a handful of Virginia jurisdictions bailed out from coverage that once included all of Virginia.). Only 17 jurisdictions out of the more than 12,000 covered have bailed out since 1982.

Another idea is to update the formula and retest all 50 states to see if any are suppressing minority voters today. This fulfills two purposes. It allows Congress to search for new problem areas since many states are much more diverse in 2009 than they were in 1965. And it allows covered states that have achieved equality to remove the scarlet letter they inherited from their forebears. It’s beyond absurd to judge today’s Georgia based who did or didn’t get to vote in the 1964 presidential election, yet this is exactly how the Voting Rights Act works.

Both of these solutions would dust off a Voting Rights Act and correct concerns that Roberts addressed directly in the court’s opinion.

“Things have changed in the South,” Roberts wrote. “Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”

Thanks for noticing, Mr. Chief Justice. We’re proud of how far we’ve come in the South. Maybe one day Congress, too, will work up the courage to recognize the obvious.