Legislation Unjustly Discriminates Against White Voters and Creates Opportunities for Special Interests to Determine Voting Laws

On January 16, Rep. James Sensenbrenner (R-WI), Rep. John Conyers (D-MI) and Senator Patrick Leahy (D-VT), introduced legislation, the “Voting Rights Amendment Act of 2014 (VRAA),” to amend the Voting Rights Act of 1965.¹

The VRAA provides people who believe voting law should protect the rights of all citizens equally, regardless of race or national origin, with a great deal about which to be concerned.

The VRAA also provides the U.S. Department of Justice with new mechanisms through which it can impose itself on the states, giving the department de facto legal authority to block or impose voting policies on certain states in accordance with the views of whomever is attorney general.

There are other significant concerns about the VRAA, but the scope of this paper will be limited to those two.

Background

On June 25, 2013, in Shelby County v. Holder, the U.S. Supreme Court invalidated Section 4(b) of the 1965 Voting Rights Act. Section 4(b) provided the formula used by the Act’s Section 5 to determine which states and localities were required to receive advance permission, or preclearance, from the federal government before changing any of their voting laws.

In overturning Section 4(b), writing for the majority of the Court, Chief Justice Roberts said the coverage formula that made sense in 1965 and which were ruled constitutional by the Supreme Court as a temporary, emergency matter soon thereafter, no longer made sense.

Nearly 50 years later, things have changed dramatically… The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet [Congressional reauthorizations of the Act have] not eased Section 5’s restrictions or narrowed the scope of Section 4’s coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger…

Although the Court’s invalidation of Section 4(b) at least temporarily defanged Section 5’s preclearance authority, the Voting Rights Act nonetheless still provides the federal government with significant authority to guard against voting rights violations in states and localities.²

The Court decision made it clear that if Congress were to modernize Section 4, the re-written statute could well pass constitutional muster.

The VRAA, however, is not a simple modernization of Section 4. It is a whole new ballgame.

The VRAA Fails to Protect All Voters Equally Under the Law

Whereas the original Voting Rights Act was intended to stop any state or locality from “den[ing] or abridg[ing] the right of any citizen of the United States to vote on account of race or color,” the VRAA contains mechanisms intended to prohibit “discrimination on the basis of race, color, or membership in a language minority group” – except, in some cases, if the persons being discriminated against are non-Hispanic whites.

Specifically, the VRAA provides the U.S. attorney general with powers over localities that have had “persistent, extremely low minority turnout” for at least 15 calendar years as compared to minority voter turnout nationally.

However, if whites are a minority in a community, and for 15 calendar years or longer the white turnout rate within that community is substantially lower than the voter turnout rate for white voters nationally, no notice is taken, and no powers are granted.

The legislation contains definitions for “minority” and “nonminority” for the purpose of identifying which population groups receive full protection.

Minorities, whose voting rights are protected under the provision, are defined as persons “who identify themselves as being of Hispanic or Latino origin; of a race other than white; or of 2 or more races.” The legislation goes on to say, “the term ‘nonminority’ means persons who identify themselves as being not of Hispanic or Latino origin, white; and not of any other race.”

This VRAA provision, therefore, fails to equally protect non-Hispanic whites who do not “identify themselves” as having some non-white³ ancestry.

The VRAA Could Enshrine the Left’s New Definitions of “Voting Rights” into Law Over the Objections of States and Localities

No discussion of new federal powers to force the states to protect voting rights in the states and localities can be complete without an analysis of what the political left and the leadership of one of America’s two major political parties presently considers to be a “voting right.”

Most Americans may suppose the “voting right” is easily and accurately described as the right to vote on the same terms as any other citizen in a climate without burdens such as poll taxes, land ownership requirements, literacy tests or the like. Or, as the 1965 Voting Rights Act defined it, as the right to vote without any denial or abridgement as a result of race or color.

Judging by the overwhelming support of both parties for the original Voting Rights Act,⁴ this was a consensus, bipartisan definition in 1965. It is no longer.

Today the political left and the national leadership of the Democratic Party consider the following, among other things, to be “voter suppression” (aka, impermissible violations of the right to vote):

Requiring people voting in-person to vote in their own precinct;

States not requiring that high schools hold voter registration drives;

Not allowing 16- and 17-year-olds to “pre-register” to vote before they turn 18;

Not allowing in-person voting for multiple weeks;

Requiring voters to select each candidate individually in order to vote for that person, as opposed to marking a ballot once to vote a straight party-line ballot;

Not allowing candidates filing to run for office to do the filing via the Internet;

Linking the date of a primary election in one state to the date of the primary election in another state;

Eliminating voter registration on election day;

Requiring all polling places in a state to open at a uniform time;

Raising maximum campaign contribution limits;

Allowing other registered voters living within the same county, as opposed to the same precinct, to challenge the legitimacy of a person’s voting qualifications.

There is broad public agreement that federal interference in state and local election procedures is warranted in cases of intentional discrimination. The Voting Rights Act itself remains popular and there is no reasonable expectation that the many powers it retains are in danger of being abridged by either federal court or Congressional action.

But there is no public consensus that involvement of the U.S. attorney general is warranted if a state determines that its high schools will not ‘pre-register’ minors; if a state decides to have in-person voting for everyone only on election day, or for a single week as opposed to two weeks; or if a state decides that all voting places will open uniformly at 7 am across a state, as opposed to 7 am in some precincts and 8 am in others, among other examples.

There does appear to be a strong public consensus against a core value within the VRAA: Those provisions extending protections to self-determined racial or ethnic minorities, with a specific carve-out denying those identical protections to non-Hispanic whites.

Polls on whether college admissions should be colorblind show overwhelming support for race-neutral admissions. For instance, a July 2013 Gallup poll⁵ found Americans choosing the colorblind option 67%-28%. Strong majorities of Republicans, independents and Democrats preferred the colorblind policy, as did whites (75%-22%) and Hispanics (59%-31%). Of groups polled, only blacks supported racial preferences, and even then it was close, by a mere 4 point margin. The question of racial preferences in college admissions is not, of course, identical to the question of racial preferences in voting rights law enforcement, but it is similar and may provide a guide to likely public sentiment regarding the enactment of voting rights protections for members of all races except one.

Conclusion

Writing about the VRAA, liberal columnist Kevin Drum said it well when he wrote on Martin Luther King Day in 2014, “Half a century ago, the fight over the VRA was a fight between racists and everyone else. Today, it’s a fight between Republicans and Democrats.”⁶

He’s right.

The post-Shelby decision Voting Rights Act retains substantial powers for the protection of voting rights. It does so in a colorblind manner, using a traditional, court-tested definition of voting rights that has long been the accepted standard for both major political parties and all population groups.

The Voting Rights Amendment Act of 2014, or VRAA, would weaken the moral authority of the original Voting Rights Act by undermining the original act’s prohibition against government action based on race or color. The VRAA also undermines federalism by giving the federal government additional opportunities to replace the judgment of state and local elected bodies with those of federal officials, and it risks allowing federal officials to repeatedly redefine “voting rights” under law in accordance with the views of whichever individual won the last presidential election and his or her allies.

Amy Ridenour is chairman of the National Center for Public Policy Research.

Footnotes:

¹ A copy of the proposed legislation was available online at http://www.leahy.senate.gov/download/1-16-14-senate-bill as of January 21, 2014.

² For an analysis of the many powers the federal government retains in the Voting Rights Act since the Shelby decision, see the testimonies of the Election Law Center’s J. Christian Adams and the Heritage Foundation’s Hans A. von Spakovsky before the U.S. House Judiciary Committee’s Subcommittee on the Constitution and Civil Justice on July 18, 2014. Transcripts were available online as of January 21, 2014 at http://judiciary.house.gov/index.cfm/hearings?ContentRecord_id=3798FE70-B5F1-C18F-30C6-70FAF7EBCA5C.

³ “White” is not defined in the law.

⁴ The final version of the 1965 Voting Rights Act passed the House by 328-74 (Democrats by 217-54; Republicans by 111-20) and Senate by 79-18 (Democrats by 49-17, Republicans by 30-1).

⁵ “In U.S., Most Reject Considering Race in College Admissions,” Gallup, July 24, 2013, available online at http://www.gallup.com/poll/163655/reject-considering-race-college-admissions.aspx as of January 20, 2014.

⁶ Kevin Drum, “Can Three Lawmakers Revive the Voting Rights Act After the Supreme Court Trashed It?,” Mother Jones, January 20, 2014, available at http://www.motherjones.com/kevin-drum/2014/01/voting-rights-act-revive-supreme-court-congress as of January 20, 2014.