The recent Supreme Court decision in Shelby County v. Holder, invalidating the "pre-clearance" formula of the voting Rights Act – which required 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, Ala., 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 council member. 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 sic positions on the city council and that resulted in Montgomery receiving the most votes of all council candidates.
The Section 4 "pre-clearance" formula on validated in the recent Shelby County decision is the same provision relied upon but the Justice Department to protect 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 but the Department of Justice or a federal court for any changes to their election practices. In striking down Section 4, which has been overwhelmingly reauthorized by Congress for another 25 years in 2006, Chief justice Roberts, indicated that the formula mist be "justified by current needs."
Certainly much progress has been made since 1965 when the VRA was passed. 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 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 nixed a photo identification law in Texas. 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.
Despite the problematic ruling, the Supreme Court left open the possibility that Congress could fix the formula. Congress should update it expeditiously. In doing so, legislators must understand that racism did not end in 1965 and that coverage based solely on geography would be outdated, as discriminatory acts occur throughout the country.
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.
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.