Voting rights experts presented sharply divergent opinions to a House Judiciary subcommittee on Thursday as members of Congress tried to assess the impact of the US Supreme Court’s decision striking down a portion of the Voting Rights Act.
Some analysts told the Subcommittee on the Constitution and Civil Justice that the remaining provisions of the VRA were more than enough to safeguard minority voting rights. Others said the high court’s action marked a considerable setback to future efforts to fight discrimination in the United States.
“We have made amazing progress in this country over the last 50 years,” said Spencer Overton, a voting rights scholar and professor at George Washington University Law School. “Unfortunately, evidence shows that too many political operatives maintain power by manipulating election rules based on how voters look and speak.”
Professor Overton said Congress must update the VRA and reauthorize the section struck down by the Supreme Court.
In contrast, J. Christian Adams, a voting rights specialist and former Justice Department lawyer, said the high court left untouched provisions that empower private citizens, civil rights groups, and the Justice Department to sue to block any attempt to discriminate in voting.
“Reports of the demise of the Voting Rights Act have been greatly exaggerated,” he told the subcommittee.
He added in his written comments that unless Congress could identify a level of discrimination that reached “rampant,” “flagrant,” or “pervasive” levels, Congress was powerless to reauthorize the so-called preclearance provision struck down in late June.
The comments came during the second hearing on the controversial high court decision in two days. On Wednesday, the Senate Judiciary Committee hosted a similar exchange of views about the meaning of and potential fallout from the Supreme Court decision.
The high court voted 5 to 4 to invalidate the portion of the VRA that designated which state and local governments would be required to seek approval from Washington before any changes to voting procedures or laws could take effect.
Congress passed the special provision in response to persistent and repeated attempts in some jurisdictions in the 1960s to deny minority voters the ability to cast meaningful ballots.
By requiring those with an egregious history of discrimination to submit any election changes, the federal government was able to prevent and deter discrimination. The measure was considered the most effective civil rights law ever enacted by Congress.
The problem was that the formula used by Congress to designate which state and local governments must submit to the special treatment had not been significantly updated since the 1960s and 1970s.
In their ruling, the majority justices said that if Congress wished to subject the states to such treatment, the coverage formula must be updated to reflect current conditions and current needs.
Now, the question before Congress is whether to attempt to reauthorize the preclearance provision by developing a new formula to identify which jurisdictions contain the most egregious discrimination.
The VRA’s preclearance provision helped federal officials identify potential discriminatory provisions before they were enacted, said Robert Kengle, co-director of the Voting Rights Project of the Lawyers’ Committee for Civil Rights Under Law.
It provided a deterrent to state and local officials who might otherwise attempt to enact discriminatory measures, he said. And it helped officials monitor the pace and quality of voting changes – including at local levels of government that most federal officials would never see.
Mr. Kengle said he is concerned that losing that key provision of the VRA might send the wrong signal “if jurisdictions believe they have a green light, or if they [believe they] can sit back and wait to be sued and just drag the process out through litigation in the courts.”
Hans A. von Spakovsky, a scholar at the Heritage Foundation and former Justice Department official, said that current evidence shows that the preclearance provision is no longer justified.
According to US census data, African-Americans voted at a higher rate than whites nationally in the 2012 election – 66.2 percent compared to 64.1 percent.
In addition, Mr. von Spakovsky said, African-American voting rates were higher than whites’ in seven states covered in whole or in part under the preclearance provision – Virginia, South Carolina, Georgia, Alabama, Mississippi, North Carolina, and Florida. In two other covered states, Texas and Louisiana, the voter turnout rates showed no disparity between black and white voters, he said.
Von Spakovsky said the preclearance requirement was an unprecedented and extraordinary intrusion on state sovereignty. “No other federal law presumes that states cannot govern themselves as their legislatures decide and must have the federal government’s consent before they act,” he said in written comments to the subcommittee.
National lawmakers have not yet begun to debate a possible new coverage formula. But one member of the subcommittee offered a suggestion.
Florida Rep. Ted Deutch (D) said that while overt racist measures such as literacy tests are no longer found in the US, racism still exists, but in a different form.
Representative Deutch suggested that Congress should identify instances of “institutional racism” and hold those jurisdictions to account under a renewed VRA preclearance regime.
He gave three examples: “stand your ground” gun laws, drug laws, and voter ID laws.
“Studies show that stand your ground laws mostly protect white people who shoot black people,” the congressman said, asserting that a white shooter was more than 300 percent likelier to be cleared of murder charges.
As for drug laws, he said, black Americans are four times likelier to be arrested for a drug offense than white Americans.
And studies show that 20 percent of prospective minority voters lack government-issued ID, the congressmen said. Any attempt to enact a voter ID law, he said, was an attempt to disenfranchise a segment of minority voters.
“Racism has grown more subversive and subtle since the 1960s, but has not gone away,” he said.
“It may be harder for us to pinpoint racism, but it doesn’t mean it has been abolished,” Deutch said. “As we go through this process, shouldn’t we be brave enough to see that if any laws reflect institutional racism, then that state should be subject to preclearance of its election laws?”