—F. Michael Higginbotham
The recent Supreme Court decision in Shelby County v. Holder, invalidating the “pre-clearance” formula of the Voting Rights Act (VRA), requiring states with a history of race discrimination in voting to secure federal approval prior to changing election practices, provides an opportunity for Congress to strengthen protection of minority voting rights. While discriminatory methods today are far from the lynch mobs and grandfather clauses that stopped blacks from voting during Jim Crow, the end result of voter suppression and dilution remains largely the same. Congress should act quickly and decisively on this core American principle in order to ensure minority participation in the democratic process.
Ernest Montgomery knows all too well the value of federal supervision in protecting minority voting rights. Prior to elections in 2008, the City of Calera, in Shelby County, Alabama, redrew jurisdictional boundaries. This process eliminated the City Council’s only majority-black district by adding several white subdivisions adjacent to Calera while refusing to incorporate a black area located nearby. The lone majority-black district was reduced from 70 to 30 percent black, resulting in the election loss of Montgomery, the only black city councilperson. The Justice Department would not approve the redistricting plan and, after extensive negotiations, Calera adopted a more inclusive at-large election system, one that prevented whites from controlling 100 percent of the six positions on the city council and that resulted in Montgomery receiving the most votes of all council candidates.
The Section 4 “pre-clearance” formula invalidated in the recent Shelby County decision is the same provision relied upon by the Justice Department to protect Councilman Montgomery from discriminatory treatment. Section 4 mandates that 15 states, including Alabama, or portions thereof, with a history of discriminatory voting laws get prior approval by the Department of Justice or a federal court for any changes to their election practices. In striking down Section 4, which had been overwhelmingly reauthorized by Congress for another 25 years in 2006, Chief Justice Roberts, writing for the majority, indicated that the formula must be “justified by current needs”.
Certainly much progress has been made since 1965 when the VRA was passed. Thousands of discriminatory proposed voting changes have been prevented since the law’s inception. Black registration rates equal that of whites in some states. Yet today, racially-polarized voting patterns, the practice of reducing minority participation for partisan advantage in many parts of the nation, with blatant racism in others, suggest a continued need for an updated pre-clearance formula.
In 2001, the white mayor and all white city council in Kilmichael, Mississippi cancelled elections shortly after blacks became a majority of registered voters. In 2011, the Justice Department stopped a Texas redistricting proposal determined by a federal court to purposefully discriminate against Latino voters. Last year, the Justice Department prevented a photo identification law in Texas from going into effect. At the time, some 600,000 Texans who had voted in previous elections, many of whom were black and Latino, would have become ineligible to vote without additional identification. In each instance, Section 4 was used to prohibit discrimination. Immediately after the Supreme Court invalidated the”pre-clearance” provision this summer, Texas, and several other states, reinstated the voter identification laws previously prevented under Section 4, and other local jurisdictions promised to revisit prior invalidated practices. Earlier this week, North Carolina restricted its early voting procedure utilized by 70% of blacks who voted in the state in 2012.
While the Shelby decision is problematic in that it weakens protection for minority voter participation, such inadequacy need not be permanent. The Supreme Court left open the possibility that Congress could fix the formula. Congress should update it expeditiously. In so doing, legislators must understand that racism did not end in 1965 and is not limited to the 15 states named in Section 4. Coverage based solely on geography would be outdated, as discriminatory acts occur throughout the country. Covered states should include those previously supervised, like Texas, where gerrymandered districts or choices by local officials to annex surrounding communities or implement at-large elections frequently reduce minority representation, but other states also need to be added. Those not previously supervised, like Pennsylvania and Ohio, where voter identification laws and limitations on early voting are the new poll taxes and literacy tests that frequently have a negative impact on minority participation, as they did during Jim Crow, need to be covered as well.
With evidence of such serious and widespread suppression and dilution, an expanded and refocused formula is clearly “justified by current needs”. Circumstances may have changed, but voter suppression, based on race, remains. Recent instances of discrimination, including faulty election machines, purges in voter rolls, and elimination of same-day registration prove that this “Ghost of Jim Crow” remains. Accordingly, coverage based on serious and widespread intentional racial discrimination, where ever it might occur, is sorely needed, still.
F. Michael Higginbotham is a professor of law at the University of Baltimore and the author of Ghosts of Jim Crow: Ending Racism in Post-Racial America (NYU Press, 2013).
[This article originally appeared in the Orlando Sentinel.]