Richard Scher: Minority voters facing dangers in court decision

Published: Sunday, March 10, 2013 at 6:01 a.m.
Last Modified: Thursday, March 7, 2013 at 11:22 p.m.

The U.S. Supreme Court recently heard oral argument on the future of the 1965 Voting Rights Act. As usual, the pundits have been out in full bloom, opining on which way the decision will go. But as we learned from the Obamacare decision, prognosticating what the court will do is risky business.

More thoughtful discussion has focused on what happens if the Supreme Court knocks out Section 5, the so-called preclearance provision of the Act. Under it, covered jurisdictions (there are five such counties in Florida) have to submit potential changes to election or voting laws to the Justice Department or the Federal District Court of Washington, D.C,, to ensure that the proposals do not discriminate against African-American and other covered minority voters.

Section 5 has always been highly controversial, and it is especially anathema to judicial and political conservatives because it appears to limit local officials' right to create and modify election and voting laws. Under the 10th Amendment, the power over voting and elections largely rests with state and local governments, because the U.S. Constitution is silent on any possible federal role.

Conservatives have argued since 1965 that Section 5 (indeed, the Voting Rights Act generally) usurps state and local authority. However, in the landmark 1966 case South Carolina v. Katzenbach, the Supreme Court upheld the Voting Rights Act and Section 5 in an 8-1 decision, arguing that Congress had full authority to combat the "insidious and pervasive evil" of voting rights discrimination against black voters.

There are at least two major dangers facing minority voters should the present court throw out Section 5.

The first is that the federal government will no longer provide protection against state and local officials' efforts to limit access to the ballot or curtail other kinds of voting rights for minorities. Currently, in covered jurisdictions it serves as a barrier, a defense, against changes clearly meant to disenfranchise or disadvantage minority voters; reducing or eliminating early voting days, which would significantly lower minority turnout, is a possible example.

In serving as sometimes very modest sentries, federal lawyers and judges have represented assurance to minority voters that their concerns about changes would be heard, and certainly in the Clinton and Obama administrations, given full weight.

But if Section 5 disappears, this assurance will evaporate. Indeed, given voting rights politics these days, it is no exaggeration to say that eliminating Section 5 could unleash powerful, dark legal and political forces which will roll voting rights for minorities back to 1964 and earlier.

The second danger of eliminating Section 5 is that it shifts the burden of proving non-discrimination away from state and local officials back to the shoulders of minority plaintiffs, who would have to prove discrimination. This is a staggeringly unfair burden to impose.

It takes us back to the Civil Rights Acts of 1957 and 1960, both of which were failures in part because the burden of proof was always on individual minority voters, not state and local officials. The Voting Rights Act, including Section 5, forced the switch of the burden of proof, one which worked wonders in ensuring that minority voting rights would be protected.

And so as the Supreme Court ponders what it will do, it would be well for the rest of us to ask, what do we want to do? Do we want to turn back the clock to an era when state and local officials, insensitive and even hostile to minority voting rights, could with impunity violate them? Or do we want to continue the nearly fifty-year commitment of ensuring that all Americans, not just white people, get to vote, and vote fairly?

Richard K. Scher is a professor of political science at the University of Florida.

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