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 2012. Ohio Secretary of State Jon Husted, 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.
In the case the Supreme Court heard last week, lawyers for Alabama’s Shelby County argue the mandate is unconstitutional because it unfairly singles out nine states, mostly in the South, depriving them of normal latitude in operating their elections. No one disputes that the rule made sense in 1965, or even later. But by now, critics argue, the South has evolved too far to justify being treated as guilty until proven innocent.
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.
It’s hard to see why at this stage of our history these jurisdictions must meet a higher standard than the rest of the country. Absent the preclearance rule, after all, steps aimed at inhibiting minority voters would remain illegal and vulnerable to court challenge — as in Ohio. If preclearance is so important for the protection of racial minorities, on the other hand, why not apply it nationwide?
Judging from the questions posed by justices in the oral arguments, the court may very well decide that the law is no longer a fair or reasonable way to uphold the rights of minority voters. The Voting Rights Act’s differential treatment of some states was not meant to be forever — only until minority voters had secured their full rights once and for all.
Like the rest of the nation, the South is far from immune to racial conflict and prejudice. But it has changed beyond recognition, and it’s about time for the law to change as well.