The measure would amend the Voting Rights Act of 1965 in an effort to cure fatal problems found by the Supreme Court last June in striking down Section 4 as unconstitutional in its constraints on six Southern states. That section required federal permission, known as “pre-clearance,” before covered states could make any changes in voting laws — which the court said was a “dramatic departure from the principle that all states enjoy equal sovereignty.”
The court scuttled the notion of penalizing in perpetuity Alabama, Georgia, Louisiana, Mississippi, South Carolina and Virginia plus many North Carolina counties for their past sins of racial discrimination in registration and voting. The court made clear that states enjoy “constitutional equality” under the 10th Amendment. And the court said the drastic measures in the law were scheduled to expire after five years — about 44 years ago!
Now comes a proposed amendment to the VRA by a Republican, Rep. Jim Sensenbrenner of Wisconsin, and a group of Democrats including Sen. Patrick Leahy of Vermont, chairman of the Senate Judiciary Committee. According to various news reports, this bipartisan group wants to “restore protections” struck down by the Supreme Court.
First, the amendment would apply the Voting Rights Act to all states, which should have been the case from the outset. However, guess what? Four states, including — you guessed it, Georgia — would automatically fall under pre-clearance, ex post facto. So would Louisiana, Mississippi and Texas. Unequal status would continue for these four states.
As for future “pre-clearance,” the proposal sets up a “distant past” formula for bringing states under this requirement, going back 15 years. A state would be covered if (1) it “commits five voting violations in the most recent 15 year period and (2) at least one of the violations is committed by the state itself,” as opposed to its political subdivisions which need only commit three violations or one violation plus “persistent and extremely low minority voter turnout.” Then the offending state or subdivision will be covered for 10 years after the most recent violation.
Under the amendment, “persistent and extremely low minority voter turnout” is prima facie established if “in the majority” of elections in the previous 15 years, the minority turnout rate in the political subdivision was below the minority turnout rate and the non-minority rate for the entire nation, the minority and non-minority turnout rate for the state and the political subdivision, and if the “average minority turnout rate across all such elections in the political subdivision was more than 10 percentage points below the average non-minority turnout rate for the entire nation.” Thus, if minorities don’t turn out for whatever reason, it’s automatically discrimination. Incredible.
This bill is not the way to fix voter discrimination.