The United States prides itself on being the hero. When a dictatorship or communism raises its anti-American head, the stars and stripes swoop in to save the day with democracy and capitalism. The State Department advertises that its mission is to “advance freedom … by helping to build and sustain a more democratic, secure and prosperous world.” One would imagine that a nation so committed to the spread of democracy would take all necessary steps to preserve democracy within its own borders.
Last week, the Supreme Court heard oral argument on the constitutionality of Congress’s reauthorization of the Voting Rights Act of 1965 (VRA). The specific question for the Court was whether Congress had the constitutional authority under the 14th and 15th Amendments to renew Section 5 of the VRA. Section 2 of the VRA gives government and private plaintiffs a judicial remedy for any “voting qualification or prerequisite to voting or standard, practice or procedure … imposed or applied … in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Section 4 of the VRA includes a “coverage” formula that determines which jurisdictions are subject to the “preclearance” provisions of Section 5. Essentially, a jurisdiction was “covered” if it had a “test or device” that restricted access to the polls as of Nov. 1, 1964, and if less than half of eligible voters exercised their right to vote or were registered as of Nov. 1, 1964. Once a jurisdiction is subject to Section 5, it must submit any voting changes to a three-judge court in Washington, D.C. for determination that the proposed change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.”
In the case now before the Supreme Court, Shelby County v. Holder, a small Alabama county challenges the constitutionality of Congress’s reauthorization of the VRA, especially its reauthorization of Sections 4 and 5. The crux of Shelby County’s argument is that the danger has passed. The “blight of racial discrimination in voting” that the Court found in the 1966 case of South Carolina v. Katzenbach has been vanquished. In fact, Shelby County points to an astonishing negative correlation between inclusion in the coverage formula and black registration or turnout. At oral argument, Justice Scalia decried the 2006 reauthorization of the VRA as a “perpetuation of racial entitlement,” evidence of lawmakers’ reluctance to come out against legislation with such an entrenched racial history.
But the “racial entitlement” that Justice Scalia speaks of runs against the grain of historical precedent. In the case of Katzenbach, the Court noted that Congress used its enforcement power under the 15th Amendment to enact the VRA in order to end “nearly a century of systematic resistance to the 15th Amendment” and “to banish the blight of racial discrimination in voting.” While it is true that we no longer live in a country tainted by Jim Crow laws or a powerful Ku Klux Klan, we by no means live in a post-racial society. A brief glimpse at crime statistics, or even a casual stroll through a TSA security checkpoint at an airport betrays the pervading racial sensitivities of American society.
The voter suppression laws of the 21st century may no longer take the form of literacy tests or poll taxes, but voter suppression endures. As usual, Florida is a textbook case. When Gov. Rick Scott took office in 2011, he immediately began his campaign to cut back on early voting. Officially, Gov. Scott maintained that he was committed to eliminating voter fraud. But in a November 2012 report by the Palm Beach Post, several Republican Florida lawmakers admitted that the real goal of the campaign was to suppress Democratic votes. In fact, according to one election supervisor in Florida, Floridians are more likely to get struck by lightening than commit voter fraud.
Suppression of the Democratic vote is not exactly the same as the suppression of the black vote that Congress originally intended to eliminate with the Voting Rights Act, but it is analogous. Particularly in light of the last presidential election, after which some Republicans conceded they were “a ‘Mad Men’ party in a ‘Modern Family’ world,” Republican efforts to suppress the Democratic vote translates into a suppression of the non-male, non-white vote.
I understand that the Supreme Court may strike down Section 5 of the VRA as unduly burdensome on federalism and an unwarranted departure from equal treatment of the states. But the Court cannot argue that there is no longer any need for federal oversight of the right that defines democracy. From this country’s very inception, its citizens have held the right to representation near and dear. A United States that allows its own citizens to be denied the right to vote can hardly go out into the international community to spread freedom and democracy without incredible hypocrisy.
Joline Doedens is a first-year law student. Her column runs every other Monday. You can follow Joline on Twitter @jydoedens.