Bringing Voting Rights Law into the 21st Century, by Cherylyn Harley LeBon

lebon_smIn the general election of 1964, racial discrimination existed that made it harder for minorities to vote. Conditions were considered so bad in nine states and portions of six others that the Voting Rights Act of 1965 included a “extreme temporary measure” that these problem areas had to receive federal approval for any and all actions affecting how people vote.

This means everything from polling place rules to zoning lines in far-flung places such as Nome, Alaska and Key West, Florida must receive “preclearance” from someone in the nation’s capital before they are considered legal.

Nearly 50 years later, most of these states and localities are still held to that same “temporary” standard of scrutiny — and the Obama Administration and the civil rights lobby wants to maintain this antiquated status quo.

But the U.S. Supreme Court could change all that and bring the Voting Rights Act into the 21st century. In the case of Shelby County, Alabama v. Holder, which was argued before the Court in late February and will be ruled upon by the end of June, the constitutionality of the Act’s preclearance standards are expected to be determined by the Court’s justices.

Far from the exaggerated claims, there is no chance the justices will overturn the Voting Rights Act in its entirety. The case focuses on the Act’s Section 5 preclearance mandate. There is also no way a decision will restrict Americans’ right to vote — that is protected by the 14th and 15th Amendments to the U.S. Constitution.

As the daughter of a man born and raised in South Carolina, I fully appreciate the importance of the Voting Rights Act and the impact it has had on the lives of black Americans and other minorities.

What the Court may determine — as was indicated by several of the comments of the justices during oral arguments — is that attitudes have changed since the Voting Rights Act was passed. There are likely no public officials guilty of 1964 offenses still serving today, and new generations of public servants no longer harbor old resentments based on skin color.

Yet the Voting Rights Act continues to be enforced as if Governor George Wallace and Senator Robert Byrd are still alive and still fighting for legalized discrimination.

In a brief filed with the Court in the Shelby County case, the Project 21 black leadership network argued: “Today, Section 5 continues to place only certain state and local governments under a form of federal receivership, often without rhyme or reason. However, the ‘insidious and pervasive evil’ of racism in the Deep South, which once justified Section 5’s uniquely burdensome remedy, has greatly diminished.”

Florida, for instance, recently elected a black woman to the statewide post of lieutenant governor. Louisiana and South Carolina have governors of Indian ancestry. South Carolina also has a black U.S. senator. A Hispanic represents Texas in the U.S. Senate. All these states are under federal scrutiny for implied institutional bigotry.

Across America, race is similarly becoming such a non-issue that Representative Steve Cohen, a white man, is routinely re-elected to a Tennessee “majority minority” congressional district drawn by the mandates of the Voting Rights Act to favor a black candidate.

Continuation of the Voting Rights Act’s preclearance standards, however, serves as a political tool for the Obama Administration. In 2008, the U.S. Supreme Court upheld the constitutionality of voter ID laws meant to protect against fraud at the ballot box. But the Justice Department used Section 5 to successfully prevent implementation of voter ID democratically-enacted laws in Texas and South Carolina (although South Carolina’s was later ruled constitutional by a federal court — but too late for the election — and Texas is appealing a previous ruling).

With the exception of a small-minded few who possess no real political power, the American people have long since moved on from rules that singled out certain people for disparate treatment. Federal regulators, unfortunately, have not. At this very minute, state and local governments are still beholden to mandates from Washington that oversee and control purely local issues.

Only the justices of the U.S. Supreme Court can reasonably address this problem at this point in time.

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Cherylyn Harley LeBon is co-chairman of the Project 21 black leadership network. She is a former Senior Counsel to the U.S. Senate Judiciary Committee. Follow her on Twitter @HarleyLeBon.  Comments may be sent to [email protected].

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