The weakness of the case for Section 5 of the Voting Rights Act is evident in the fact that its defenders rarely offer any evidence that it does or will do any good. Instead, they offer the progressive version of original sin. Nine states, mostly in a line cutting across the South, must continue to seek preclearance from the Justice Department for any minute change in their election laws. Why? Because a half century ago they were very, very bad.
The Chicago Tribune, suddenly a voice of reason, points out some of the oddities of the situation.
In understanding the case before the U.S. Supreme Court over the requirements of the Voting Rights Act of 1965, it's worth considering a controversy from last year. Ohio Secretary of State Jon Hunsted, a Republican, decided to restrict early voting hours, acting on a law passed by the Republican-controlled Legislature. Critics said the intent was to make it harder for black voters to cast ballots.
One GOP county chairman didn't dispute it. "I guess I really actually feel we shouldn't contort the voting process to accommodate the urban — read African-American — voter turnout machine." A lawsuit was filed, and a federal court ordered the restoration of early voting hours.
It's the sort of machination you might expect in the South, where white politicians once found so many insidious ways to stifle black voting. That's why the Voting Rights Act of 1965 has special rules for many of these states requiring them to get Justice Department approval of any changes that affect voting. "Preclearance" was mandated because in so much of the South, white officials incessantly used every means available to disenfranchise African-Americans.
But the Ohio episode illustrates two important facts: Such tactics are hardly unique to former Confederate states, and the federal courts offer a reliable way to vindicate the rights of minority citizens.
The above illustrates one vital point: the preclearance requirement for the nine states is unnecessary. Yes, there is still racism in America and yes, there is the possibility that unscrupulous legislators will try to keep African Americans from voting. However, any such attempts will be challenged and overturned in courts.
Meanwhile, how do the covered states actually perform when it comes to minority voting? You might think that that would be relevant.
Black Southerners were once harassed, refused and even killed when they tried to register to vote. But today, as the Supreme Court noted in 2009, "the racial gap in voter registration and turnout is lower in the states originally covered by (the rule) than it is nationwide."
In seven of the nine states, it found, blacks were more likely to be registered than whites. The Shelby County lawyers noted that, since 1982, Illinois has had more of these voting rights lawsuits than most of the covered states. Likewise for New York. It's rare for the Justice Department to actually reject a change submitted under preclearance — which suggests that the pattern of defiance has been irreversibly demolished.
No doubt there are instances where governments in these states try to keep blacks from going to the polls or electing minority candidates. But the same thing happens in other states as well.
There is, in short, no reason to continue treating these nine states differently from the other forty-one. Irrationally disparate treatment is supposed to forbidden under constitutional law.
There are two reasons that the left is vehemently insistent on keeping the 1965 regime intact. One is that they will never willingly let go of a federal power over state governments. The other is that they don't know how to live without the righteous indignation that they have enjoyed for a half century.