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By Tom Cushing

W(h)ither Voting Rights?

Uploaded: Mar 5, 2013

Human nature being competitive and ethically flexible, if voting was essential to the invention of democracy, could vote-rigging have been far behind? Nope. There is evidence that early Athenians manipulated ballots cast on pieces of pottery (hanging shards?). In US colonial history, no less a figure than the Father of our Country was said to have won his seat in the Virginia House of Burgesses by spending 40 pounds on booze for his neighbors. And traditionally in Chicago, although a person's death may have been tragic, at least it needn't have kept him from exercising the franchise.

However, nowhere was such chicanery in the form of voter exclusion practiced in so comprehensive, open and vehement a manner as in the former Confederate States after the Civil War (a conflict known locally as the Recent Unpleasantness). The post-war 13th through 15th Amendments to the US Constitution were intended to grant full civic participation to freed slaves, but for nearly a hundred years those provisions were circumvented by formal and informal systems of enforcement against the exercise of voting while black.

Poll taxes, literacy tests and brutal intimidation were tools of that tradition, right up through the early 1960s. The NAACP was founded in 1909 for the express purpose of securing the vote for African Americans, and fought long and hard against this crucial element of the American Apartheid. The cause of voting rights has seared images of Selma's Pettis Bridge, the murdered Viola Liuzzo and an otherwise unremarkable 'earthen dam' in the vicinity of Philadelphia, Mississippi into the nation's collective memory.

Throughout that turbulent era, the federal government overrode local authorities who refused to act to end injustice. Federal courts secured marchers' rights to demonstrate, and National Guard troops protected them and others, like the high school students bravely integrating public schools in Little Rock, and James Meredith as he enrolled in college at Ole Miss.

Congressional responses took several forms, including the Civil Rights Act of 1964, and the Voting Rights Act or 1965 (the VRA). The former broadly outlawed discrimination in employment, housing, accommodations and elsewhere, while the latter dealt with voting, per se. Despite that narrow focus, the VRA has been widely celebrated as the single most effective reform law passed during the civil rights era.

The two active provisions of the Act are section 2, which bans discrimination generally, and section 5, which requires 'preclearance' of any voting protocol changes in any jurisdiction that has a history of systematic discrimination. It is included in recognition of the fact that human creativity in the service of such a heart-felt goal is practically boundless; no law could anticipate in-advance every artifice that might be devoted to the task of disenfranchising black voters. Pre-clearance, then, would allow the feds to review plans in-advance for their destructive potential, and prevent that damage. Seven states, mostly in the Deep South, fall under the Section 5 pre-clearance requirement.

The VRA has been re-authorized by Congress five times, most recently in 2006 (the Senate voted 98 – 0, meaning that the Sec. 5 state Senators must have concurred). At that time, some 15,000 pages of testimony from 21 hearings supported the action. In 2009, a Texas utility district challenged pre-clearance, essentially claiming that the federal government had exceeded its enumerated powers by enacting the law. In upholding it at that time, Chief Justice Roberts pointedly recommended to Congress that it revisit Section 5's criteria, which had not been amended since 1972. Congress, of course, took note and did no such thing. That was an unfortunate missed opportunity, as there were majorities friendly to the Act in both Houses.

Which brings us to last week, when another Sec. 5 case came before the Court for argument. The issue is strikingly similar: has the federal government (Congress) over-stepped its Constitutional powers in enacting, or perpetuating the Sec. 5 scheme to enforce the 15th Amendment?

Wonks will recognize that this issue is not often decided by the Supremes. Accordingly, there are many ways they could go – from a wholesale purging of the VRA through excision of Sec. 5, to another warning – sterner this time – that its formula is outdated and needs attention. It seems likely that Section 5 will be weakened; otherwise, why even hear another case so similar to the 2009 version? I think that's both premature and a poor signal to send to the states in this uber-partisan epoch.

As to the notion that the VRA is outdated, much as been made of the re-election of our black President, and high levels of both turn-out and electoral success among various minority communities. To me, though, that's a testament to the success of the Act -- but it speaks not at all to the question of what would happen if its requirements were to be removed. I'm very much in the 'why mess with success' camp, here.

And if we want to look for evidence of what instincts will be indulged if protection is weakened, we need look no farther back than 2012, when GOP-controlled legislatures in battleground states like Florida, Ohio, Wisconsin and Pennsylvania (among others) enacted laws that restricted voting – in ways designed to differentially discourage likely Democrat voters. Granted that these schemes were more broadly targeted than some of their predecessors, but they were no less venal. Their make-weight justifications as voter-fraud countermeasures was brazenly ironic, as there's no evidence of such misbehavior – other than these new laws, themselves, of course.

Vote-rigging by disenfranchisement really is one of the lowest perversions of the system available to partisans. But that's not to say that it's unpopular. Because of the federal government's limited Constitutional powers, it cannot design a national voting system that could be uniformly administered to protect voting rights. So we are left with a game of whack-a-mole, played-out in every jurisdiction between Po and Dunk. Now would be a very bad time to take away any part of the mallet.