Thursday, February 23, 2006

Do Blacks Still Have The Right to Vote?: The Future of The Voting Rights Act

There's a hoax going around which isn't really a hoax. It's an email which is both amusing and alarmingly inaccurate, but which has a kernel of truth that's quite important.

I found it at work recently: a claim that African Americans are about to lose the right to vote. It's evidently being passed around on the Internet, predominantly among African Americans I presume, as I don't recall seeing coverage in the wider media. That might be a sign of racism and bias in the mainstream media, except that in this case, the claims being made are, on the face of it, laugh-out-loud ridiculous.

The email purports to be excerpts from a speech given by Bill Cosby's wife Camille, and it is a farrago of fractured and confused claims that bear only tangential relationships to reality. Some choice excerpts:
Did you know that our right to VOTE will expire in the year 2007? Seriously! The Voters Rights Act signed in 1965 by Lyndon B. Johnson was just an ACT. It was not made a law. In 1982, Ronald Reagan amended the Voters Rights Act for another 25 years. Which means that in the year 2007 we could lose the Right to vote! Does anyone realize that African Americans are the only group of people who require PERMISSION under the United States Constitution to vote! In the year 2007, Congress will once again convene to decide whether or not Blacks should retain the rights to vote (crazy but true). In order for this to be passed, 38 states will have to approve an extension.
This reads like a classic example of the end state of a game of Telephone, or Chinese Whispers as it's known in England (which, off-topic, will clear up one item of confusion among Beth Orton's stateside listeners). First of all, an "Act" of Congress is not different from [different than? grammarians, help me out in the comments please] a law - it is a type of law. All sorts of enactments by the U.S. Congress are given popular, short titles which typically includes the term "Act," but this does not make them any less a law. Some laws are written so that they will sunset and expire after a certain time if they are not renewed, and the Voting Rights Act is such a law.

Secondly, there is no chance that African Americans, as a class, will be legally denied the right to vote after 2007. There's a little thing called the 15th Amendment, which reads in its entirety:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.

The right to vote without regard to race could not be overturned unless the Constitution were amended and the 15th Amendment repealed. That is not about to happen anytime in the foreseeable future. Blacks do not require "permission" to vote under the Constitution - to the contrary, the Constitution guarantees that they do not need to seek special permission on account of their skin color or race. (And that bit about blacks being the "only people"? Who knows where that came from - paranoia, confusion, you name it. True, the 15th Amendment was written with black ex-slaves in mind, but it applies to all people of all races, including whites, should there ever come to be a situation where they would need its protection.) Congress will not decide whether blacks "retain the right to vote" in 2007, and it will not require 38 states. In fact, it would require 38 states, or 75% of the total, to pass an amendment taking away that right.

Rather, Congress will decide whether to extend the Voting Rights Act, or let it expire. The Voting Rights Act is simply an example of Congress using the power granted by Section 2 of the 15th Amendment, and taking action to see to it that the right to vote is not, in fact, infringed on unconstitutional grounds.

Some of the debunkers, though, have been far too dismissive, high-handedly declaring that "Forwarding this email does nothing but spread false information. It not only disseminates false beliefs, it also raises unnecessary alarms, wastes time and clogs email inboxes." The kernel of truth in the email is actually extremely important and raises a very necessary alarm. Section 5 of the Voting Rights Act remains a very important tool for protecting minorities' right to vote, against all manner of attempts to subvert it. Letting the Act expire would not formally affect blacks' right to vote, but it would remove legal oversight of sneaky maneuvers that have deliberately disproportionate impact on poor and minority voters, and that are obviously intended to disenfranchise such voters.

In the 2004 election, Ohio Secretary of State Ken Blackwell allegedly announced that he would strictly enforce highly technical state regulations about the weight of paper required for voter registration forms. The obvious point was to throw out the registrations of people - mostly younger, poorer, less connected voters - who had not always been invested enough in the system to register, and who had only recently signed up on photocopied forms that didn't meet the paperweight rule. (Blackwell's office subsequently claimed that this was only a recommendation, to ensure that thin forms were not damaged in the mail, and that they did not direct election boards to refuse any thinner forms.) Fortunately, supporters of the right to vote were able to point out that the Voting Rights Act, which trumps state law, provides that "No person acting under color of law shall . . . deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election." Blackwell's rule was not enforced to disqualify voters.

More recently, several states passed voter ID and voter registration laws which will will deliberately make it difficult for poor, rural, minority voters to vote. Georgia's new law would make it one of only two states to require government-issued photo ID in order to vote. Many poor, rural blacks don't have photo ID, and many, especially those born outside of hospital settings under Jim Crow's reign, don't have the birth certificates or other documents that would be required in order to have an official photo ID issued. Georgia has announced that people will be able to get ID issued without a fee, but it hasn't said that it will provide free help for people who don't have the time, money, transportation, or other means to dig up birth certificates, if they even exist, in order to get ID in the first place.

Fortunately, Georgia's voting laws still require preclearance by the U.S. Department of Justice, thanks to Section 5 of the Voting Rights Act, which is part of the reason that many in the South are glad the VRA is still around:

...Adegbile of the National Association for the Advancement of Colored People Legal Defense and Education Fund said the value of the preclearance requirement lies partly in what it prevents."That procedure deters many jurisdictions from proposing voting changes that are discriminatory in the first place," he said. "When policy-makers know their work is going to be reviewed, he said, they are "less likely to do something that is intentionally discriminatory or has retrogressive effects."
State Rep. Tyrone Brooks, D-Atlanta, said Georgia's recent General Assembly session provided evidence that preclearance is still essential. The state Legislature passed a law requiring voters to bring a photo ID to the polls. Republican supporters said it's aimed at stemming voter fraud. But Democrats and civil rights leaders protested that it will unduly hamper poor, black, elderly and rural voters. Under Section 5, the law won't go into effect until the U.S. Justice Department or a federal court approves it."It proves the point that the Voting Rights Act is critical, particularly to Southern states as far as these states moving the clock back," Brooks said.
Rep. John Lewis, D-Atlanta, fought for the Voting Rights Act with his own blood. He was among the marchers who were clubbed in Selma in 1965. He still bears the scars. "I think there's a need to renew Section 5," he said. "We've made a lot of progress, there have been a lot of changes. But there is still progress to be made. It's been 40 years, but I think we still need preclearance and the sections that will expire in 2007 so we will not be tempted to go back."
There are still potential problems, of course - for all of the protections it offers on paper, we might have Texas Republicans in Washington in charge of enforcement of the Act. And, sure enough, right after the nonpartisan career experts at DOJ found that Georgia's law would dilute minority voters, they were overridden by the political appointees under Alberto Gonzales. (This link to the Washington Post probably won't last.) The Georgia law has been suspended by a federal court for the time being, but the episode reminds us that along with renewing the VRA, we also need to depoliticize the decisionmaking at DOJ. Mark Posner, who served as an attorney in the DOJ Civil Rights Division from 1980 to 2003, argues in a recent American Constitution Society white paper that there is significant grounds for concern that "Justice Department enforcement of Section 5 has been corrupted by decisionmaking based not on a good faith application of the law to the facts of individual preclearance requests, but instead on partisan political interests." Posner argues that Congress needs to enact a statutory underpinning for the procedures historically used by the Justice Department to guard against political decisionmaking, since, as he ever-so-politely puts it, "there is concern that the Bush Justice Department may now be manipulating or undermining" those procedures. He also suggests a limited expansion of the circumstances in which DOJ Section 5 decisions could be appealed in federal court. Of course, neither of those remedies is going to be enacted by a GOP-controlled Congress, and even if they were, it would be of severely limited value to grant further discretion to a GOP-stocked DOJ, and to allow more appeals to a judiciary brimming with Scalitos. The ultimate answer has to be electing progressives to office.

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