Yet even though those days are decades in the rear-view mirror, thankfully never to return, nine Southern states and parts of seven others must obtain preclearance from the U.S. Justice Department under Section 5 of that act for any and every election. That scrutiny was sorely needed back in the days of poll taxes and the like. But it’s not needed any longer.
“It’s very different, 2013, than it was 1964,” said Georgia Attorney General Sam Olens last week. “And it is time for Section 5 to be found unconstitutional, and for Section 2 to be the standard by which all 50 states have to seek fair elections.”
As he also noted, it’s not just elections for candidates that are impacted.
“If a local government wants an election for a park bond, you have to get pre-clearance from the Justice Department,” he said.
The U.S. Supreme Court heard arguments on Wednesday in an Alabama case that challenges the need for such election preclearance.
The Constitution requires the federal government to treat all states equally under the law, as part of the “equal footing” doctrine. There were valid reasons in 1965 for Congress to treat states differently in order to finally achieve racial justice in the election process. Those reasons now are history.
There are many counties and cities in the South where black registered voters outnumber white ones. And Georgia, Mississippi and North Carolina have all seen larger proportions of black residents register to vote than white ones.
There have been thousands of African-American elected to political office across the South in the decades since the Act’s passage. People’s views on race have changed so much that blacks have been elected to Congress from majority-white districts (an unthinkable occurrence in 1965), such as Georgia Democrat Sanford Bishop. Blacks have also been elected to statewide office in Georgia, i.e. former state Attorney General Thurbert Baker and state Labor Commissioner Michael Thurmond. It’s easily conceivable that Georgia could elect its first African-American governor or U.S. Senator within the next two to six years.
As Chief Justice John Roberts pointed out during Wednesday’s arguments, Massachusetts now has the worst ratio of white voter turnout-to-black voter turnout in the country. Yet it is not affected by Section 5 of the Voting Rights Act. And which state has the best white vote-to-black voter turnout ratio? Mississippi — which of course is impacted by Section 5.
None of this is to say racial prejudice no longer exists. It does (and from all corners). Yet the implied argument from liberals opposed to changing even a period or comma of the Act is that there has been no racial progress in this country, and especially in the South. The evidence is overwhelming in the other direction, and a good argument can be made that the South in fact has outpaced the rest of the nation on that subject since the 1970s.
As Olens and many others have said, this is 2013, not 1963 or ’64 or ’65. Yet Georgia and the eight other states in question are being treated as they are guilty and must prove their innocence.
Congress could amend the Act to apply Section 5 to all 50 states. But the better outcome would be for the Supreme Court to leave the Act in place, but strike down Section 5 as unconstitutional.