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American Voting Rights And Democracy In Peril
American Voting Rights and Democracy in Peril
The Voting Rights Act of 1965 is an important landmark piece of federal legislation that the United States Supreme Court has taken up this judicial term. It is also the latest attempt by the Republican party to change the electoral makeup of the United States which is rapidly trending away from them. These trends are based both in regards to their policies and to demographics. The 2012 election cycle featured several of their attempts at voter suppression by way of new voter identification laws, selective shortening of voting hours, as well as other methods. Now they are contemplating altering the way electoral college votes are distributed as well as engineering this Voting Rights Act judicial challenge.
The South and some other states had employed a lengthy list of laws to restrict African Americans in regards to many of their rights including voting after the Reconstruction period following the Civil War. President Lyndon Johnson engineered the passage of the Voting Rights Act in 1965 to ensure that African American citizens would not be impeded from voting in the South and elsewhere. Supreme Court observers feel that there is a serious chance that the Court might overturn that law this term.
I will examine the contents and history of the Voting Rights Act as an opening to this Hub. Then I will describe the case being brought before the Court along with the pros and cons being argued. Finally I will state my analysis of these arguments along with my concluding position.
The Civil Rights movement grew steadily throughout the 1950's and 1960's as a delayed outgrowth of the extreme "Jim Crow" laws, mainly in the South, that restricted the rights of their African American citizens. These laws segregated them from the rest of their society. They were relegated to vastly inferior accommodations , services, education, and all other advantages that their fellow White citizens enjoyed. President Johnson, in 1964, decided to take up the civil rights cause that the recently assassinated President John Kennedy had initiated. He aggressively pressed the Congress to pass the Civil Rights Act ending segregation in schools, workplaces, and all public establishments.
In 1965, President Johnson successfully engineered the passage of the Voting Rights Act. This law was initiated to put a halt to the various practices that restricted or precluded African American citizens from voting. A couple of examples of these tactics were the poll tax and literacy tests. This law also requires pre-clearances from the United States Justice Department for all voting changes in districts that come under the purview of this Act. These states and districts are areas that had previously utilized voter suppression devices in a lengthy and sustained basis over the course of many years. There is also a bailout provision in this Act where a district may prove that they no longer use such devices and will never do so again. There is also a bail-in mechanism where the Justice department may offer proof that a district is now using such voter suppression devices. The Voting Rights Act was renewed by Congress in 1970, 1975, 1982, and 2006. The 2006 vote in the United States Senate was 98-0.
The United States Supreme Court agreed to hear the case of Shelby County v Holder on November 9, 2012. The question before the Court is whether Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4B of that Act exceeds its authority under the Fourteenth and Fifteenth Amendments thus violating the Tenth Amendment and Article IV of the Constitution. The Tenth Amendment reserves all powers not specified in the U.S. Constitution to the states. Article IV states that all public acts, records, and judicial proceedings of a state shall be recognized and in effect for every other state.
The Voting Rights Act was passed to fulfill the Fourteenth Amendment's due process clause which prohibits state and local governments from depriving persons of life, liberty or property. It also protects this Amendment's equal protection clause which ensures that all citizens are protected in the same way. The Fifteenth Amendment protects the voting rights of citizens based on race, color or previous servitude. Therefore the crux of the argument before the Supreme Court is whether the Voting Rights Act now oversteps its powers enforcing the Fourteenth and Fifteenth Amendments.
A great many of the localities in the South have remedied the onerous restrictions that they had placed on voting for African Americans. Poll taxes and literacy tests are a thing of the past. There are opt out and opt in mechanisms in the Voting Rights Act. Localities that have shown sustained compliance have been able to opt out and no longer have to apply to the federal Department of Justice (DOJ) to enact voting and election changes. These opt outs have dramatically increased over the last few years. Some localities have had to be opted in due to violations but these events have been very few.
Not all of the states and localities covered by the Voting Rights Act are in the South. Section 5 covers discrimination against African Americans. Most of the states covered by this section are in the South. New Hampshire and Alaska are the two that are covered but not from the South. Some states are covered by Section 203 which protects American citizens of Spanish heritage and American Indians. The states under Section 203 represent a much wider swath of the United States and is not restricted to one geographical area.
One of the key arguments that the opponents of the Voting Rights Act use in this case is that it is used unequally against the South. I believe this to be a fallacious argument. Firstly, this law was initiated and directed at the southern states because of their blatant use of mechanisms to deter African American voters. Secondly, the opt out provisions have allowed numerous southern localities to remove themselves from this DOJ elections oversight. Thirdly, states all around the country are effected for violations against many different minority ethnic groups.
Another argument against the Voting Rights Act is that this is a state function under the U.S. Constitution and not a federal one. The Fifteenth Amendment supersedes this interpretation and makes it constitutionally wrong on its face. This amendment not only states that no state may deny or abridge a citizen's right to vote due to race but empowers the United States Congress to enforce it.
The last major argument against the Voting Rights Act is that the conditions that precipitated this law no longer exist. The run up to the 2012 elections and its aftermath have clearly proven the falseness of this assertion. The 2012 election cycle is replete with examples of voter suppression laws passed by Republican legislatures all across the United States. Voter identification laws were passed both in the North and South with the aim of limiting the turnout of Democratic leaning minority groups. Early voting was curtailed in many states for the same reason. Laws aimed at college students were instituted to keep them from voting at their campuses thus lowering their turnouts in key areas. Clearly voter suppression laws are alive and well and must still be addressed. This trend has continued even after the November 2012 elections.
My view regarding this Constitutional debate boils down to which Constitutional amendment holds dominance over this question. Only ten amendments were written and passed into the initial Bill of Rights at the beginning of our republic. The Tenth Amendment gave all powers not conveyed to the federal government in the Constitution to the states. Therefore each state had traditionally set up their own voting regulations due to the absence of Constitutional rules regarding this process. Then history intruded upon this tradition.
The Fifteenth Amendment was ratified in 1870 prohibiting all states and localities from denying their citizens the vote due to race, color or previous servitude. The Civil War had preceded this development and also enabled it. This amendment also gave Congress the power to enforce it through legislation. The federal government decided to neglect this authority after Reconstruction. The South precluded almost all of its African American citizens from voting during the Jim Crow era by a variety of means.
The result of this injustice and many others was the Civil Rights movement which culminated with the Civil Rights and Voting Rights Acts. The Voting Rights Act was enacted to specifically empower the federal government to enforce the Fifteenth Amendment. This negates the predominance of the Tenth Amendment over this issue. There now was Constitutional authority giving the federal government power in this area.
In my opinion, this Fifteenth Amendment authority overrides the fairness issues that Voting Rights Act opponents raise. All localities may opt out of federal authority by showing consistent and lengthy fair behavior regarding voting rules. This Act is also used throughout the United States in regards to many ethnic groups. Thus the fairness issue is clearly wrong even though I believe it is also irrelevant.
The bottom line in this judicial argument is that the history of the United States evolved to a point where the initial sin of slavery and its aftermath needed to be remedied. The Civil War ended the institution of slavery but the discrimination and negation of rights against African Americans quickly resumed. The Voting Rights Act put teeth into the Fifteenth Amendment.
The 2012 election cycle proved that voter suppression has once again reared its ugly head with a vengeance. New voter suppression laws are spreading like wildfire. The predominance of the Fifteenth Amendment over the Tenth Amendment should ensure its being upheld by the United States Supreme Court though that is unclear. The current continuation of Republican voter suppression mechanisms urges its continued existence.
We need to be expanding our voter election rolls to include everyone. Excluding those who do not agree with our political views is undemocratic and against our American principles. Our revolutionary system of democracy is at stake in this debate. We must not be silent regarding this issue. Voter suppression left unchecked will tear the walls of our democratic republic down. We cannot allow this to happen.