"Open Primary" Vote Sparks Suit vs. Voting Rights Act

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"... 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..."

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by Hans A. von Spakovsky and Roger Clegg

Attorney General Eric Holder has undergone so much criticism in recent months that 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... Read more>>>>

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Click here for a column from the Richmond Times-Dispatch.

Click here for an editorial from The Washington Times.

Click here for an Associated Press article on the lawsuit.