Has U.S. Outgrown The Voting Rights Act?
The nation has twice elected an African-American president.
Black voters have been turning out for general elections in rates that for the first time in U.S. history rival those of whites.
And the number of black elected officials in the U.S. exceeds 10,500, up from fewer than 1,500 four decades ago.
There can be little argument that those developments illustrate dramatic change in a country still scrubbing at the enduring stain of slavery.
But do they suggest that the Voting Rights Act of 1965, a civil rights breakthrough originally designed to wring institutionalized discrimination from the nation's voting process in the Old South, is obsolete?
The Supreme Court on Wednesday will consider just that, as justices hear a challenge to the act's key Section 5, which requires federal pre-approval of proposed election and voting changes — from voter ID to redistricting — in nine states and a smattering of smaller jurisdictions elsewhere with histories of voting-related discrimination.
The constitutional challenge, which originated in Alabama's Shelby County, comes seven years after Congress overwhelmingly reauthorized the act for another quarter century.
And it follows an election season when the act was used to forestall a number of efforts that would likely have made voting more difficult for poor and minority Americans — including those in the rapidly-growing Hispanic community.
"Election laws need to apply to every state and jurisdiction equally, whether they're heavily Hispanic or heavily African-American," Edward Blum, a leading force behind the high court challenge, told us in a recent interview. "Those laws need to be one-size-fits-all."
Lining up on the other side are civil rights activists, fair voting experts and even Virginia lawyer Gerald Hebert, who has made his name helping jurisdictions get off — or, in the common vernacular, "bail out" — of the federal government's election watch list.
A Way Out, If You Don't Discriminate
One of the most persistent arguments made by those who want to see Section 5 go away is that states are unfairly compelled to remain on the federal list because of outdated formulas contained in the original 1965 act, and not based on current evidence of discrimination.
They also argue that bailing out, which requires proof of a decade of non-discrimination in elections and voting, is complicated and prohibitively expensive.
Hogwash, says Hebert, who notes that since 2009, when the Supreme Court made bailing out easier, nearly 130 jurisdictions (though no states) have successfully been released from the federal list.
An additional 69 jurisdictions successfully bailed out between 1982, when Congress amended the Voting Rights Act to include new bailout standards for local governments, and 2009.
More than 100 Virginia jurisdictions, including 24 counties and seven independent cities, have successfully bailed out of federal pre-clearance.
The costs of the process, which is largely paperwork, Hebert says, rarely exceed $5,000.
"It's affordable and cost-effective, it's administratively feasible and readily achievable," says Hebert, a former longtime Justice Department voting rights official who has argued as much in an amicus brief filed with the Supreme Court. "Bailout is not illusory, it's actually workable."
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