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Is The Voting Rights Act Outdated?

Dec 3, 2012
Originally published on December 3, 2012 12:13 pm



I'm Michel Martin and this is TELL ME MORE from NPR News. Coming up, we will speak with the author of a new study that offers some intriguing insights about why some people move up in the workplace more quickly than others. That conversation is coming up in a few minutes.

But first we want to take a look at a major case before the Supreme Court. We've spoken before on this program about the laws around voting in this country. There was much discussion around this in the run up to this year's elections. Today we want to talk about a signature piece of legislation from the civil rights era concerning voting - the Voting Rights Act of 1965.

Section five of the act requires places with a history of discrimination to get something called pre-clearance from the federal government before changing their voting laws. This was a response to the overt and aggressive conduct of officials in the affected states to keep blacks from participating. But critics say that part of the law is outdated, intrusive, and overreaching.

That's why the issue is now before the Supreme Court which has agreed to take a new look at it. For more on this important case I'm joined, now, by Spencer Overton. He is a law professor at George Washington University who specializes in voting rights. He's the author of "Stealing Democracy: The New Politics of Voter Suppression."

Also with us is Hans von Spakovsky, senior legal fellow at the conservative think tank the Heritage Foundation. He served in the Justice Department and as a member of the Federal Election Commission under President George W. Bush. I should mention that Professor Overton also served in the Obama administration. I welcome you both. Thank you both so much for joining us once again.

SPENCER OVERTON: Sure. Thanks for having us back.

HANS VON SPAKOVSKY: Thank so much.

MARTIN: Professor Overton, I'm going to start with you and I'm going to ask you just to tell us a little bit about why section five was put into place to begin with and why the Supreme Court is looking at it again now.

OVERTON: Sure. You will remember in 1965 John Lewis and other members of SNCC crossed the Edmund Pettus Bridge and they faced resistance. There was a massive clash. It was on television. It was broadcast nationwide. And that really brought attention to the fact that many people in Alabama and other parts of the South weren't able to register, weren't able to vote. Weren't able to participate in politics.

And so as a result, in August of that year Congress passed the Voting Rights Act of 1965. One of the most important parts of that law is called the section five pre-clearance provision. And what happens is that before one of these covered jurisdictions, one of these states or counties with a history of discrimination, can change its voting laws, it has to ensure that those laws are not discriminatory.

So, for example, if a polling place is moved, let's say, from a public school that's accessible to all, to an all-whites kind of exclusive private club, that type of change needs to be submitted and it needs to be reviewed to make sure it doesn't have a discriminatory effect or purpose.

MARTIN: Professor Overton, obviously I'm going to ask you why supporters of this law feel it needs to stay in place, but I'm going to turn, first, to Mr. Von Spakovsky and ask, you know, what is the specific objection that the court is going to hear? I mean, you can certainly understand just on a guy level why officials in a lot of these jurisdictions would object to having to continue this practice.

SPAKOVSKY: Well, because the systematic, official, widespread discrimination that fully justified section five in 1965 doesn't exist today. Yes, there's still occasionally discrimination but the whole purpose of section five was to prevent the avoidance of, for example, court orders that were obtained against jurisdictions.

There's no evidence that anything like that is happening. The other thing about it is this. The way states were considered to be covered was based on voter registration and turnout. The triggering formula for being covered was having registration and turnout of less than 50 percent in 1964, 1968, and 1972 presidential elections.

The big problem for Congress is, is that when they renewed this in 2006 for another 25 years they didn't update the coverage. And one of the reasons Congress didn't update the triggering formula is because if they had done that, none of the current jurisdictions would've been covered.

You know, Shelby County has sued. They're in Alabama. Look, in 1965 blacks, unfortunately, were only registering and turning out to about 20 percent because of the massive discrimination that was going on. In 2006 when they renewed this, the registration rate was up to 72 percent - way above the 50 percent triggering formula.

And in fact, the data at the time showed that the registration rate for blacks in Alabama was higher, not only of blacks in non-covered states but also of whites in non-covered states. And that was true all over with these covered jurisdictions.

MARTIN: And so just briefly, Mr. Von Stakovsky, is the argument before the Court by the people who are bringing this argument - because obviously individuals or groups have to bring an argument.


MARTIN: Is there an argument that these specific jurisdictions that are now covered should all be released from this kind of scrutiny or is it that the formula itself should be updated? Or both?

SPAKOVSKY: Basically what they're saying is that the triggering formula is outdated but also even if it was updated they should not be covered because today there simply is not the systematic official discrimination that was going on in '65 that justified it in '65.

MARTIN: Professor Overton, what about that?

OVERTON: The question, Michel, is not whether Alabama still uses fire hoses or attack dogs on civil rights marchers, but whether Alabama still has significant racial problems and whether the Voting Rights Act still serves a purpose. The answer is yes. Hans talked about Alabama black registration, but unfortunately, many of these black registered voters are unable to cast a ballot because Alabama is one of the states that in recent years have passed laws that make it harder to vote.

And if you look at racially polarized voting, it's particularly significant and severe in places like Alabama. If you look at whites nationwide, they were over three times more likely to have cast a ballot for President Obama than whites in Alabama. So racially polarized voting is significant...

MARTIN: Well, let me just jump in here just to say if you're just joining us we're talking about a challenge to the Voting Rights Act of 1965. That is before the Supreme Court this term. Why just Alabama? Or why the Southern states? I mean, some of the states that were most discussed during this election cycle - Pennsylvania, for example.

OVERTON: Mm-hmm. right.

MARTIN: Pennsylvania is not covered by this. So what about Mr. Von Spakovsky's argument that the states that were originally covered, you know, 40 years ago it may have been relevant 40 years ago - why? Just on the face of demographic trends, population movement, you know?

OVERTON: Michel, the only areas that are still covered are those areas that have discriminated in voting in the last 10 years or they have chosen to continue to remain covered because they haven't bailed out. Covered states can bail out if they're not passing laws that discriminate against minorities.

Not a single jurisdiction seeking a bailout has been turned down. Half of the 36 bailouts granted since 1984 have happened just in the past three years. Several bailouts are pending. That's number one. The other issue is, even though section five can't stop all the ills nationwide, it remains the most effective tool we have in stopping discriminatory voting practices.

Just because Ohio political operatives suppressed the vote, that doesn't mean that we should give a license to Alabama political operatives to suppress the vote. We need to be more concerned about protecting voters from discrimination and less concerned about protecting the freedom of political operatives to manipulate the voting rules.

MARTIN: And your use of Ohio, I assume, is hypothetical? Or was that meant to be specific?

OVERTON: Well, I mean there were questions about early voting...


OVERTON: ...in terms of restricting early voting...


OVERTON: ...in Ohio.

MARTIN: I just wanted to be fair about what your intention was...


MARTIN: ...vis a vis Ohio. Mr. Von Spakovsky, what about his argument that there is a process for opting out?

SPAKOVSKY: It's extremely difficult for a state to opt out because they are responsible for the behavior of every single county, every single school board, every single political jurisdiction within the entire state. And if any of those jurisdictions have not fully complied with all the different provisions, the state can't opt out. I'm not saying that there aren't some areas that may still have problems.

But the point of that is that section two of the Voting Rights Act- that's the part of the Voting Rights Act that is permanent, covers the entire country, prevents racial discrimination in voting.

If someone is discriminated against or a jurisdiction is discriminating, you can file a section two lawsuit and, if you can prove your case in court, then the court is going to apply a correct remedy. But the problem with section five is that it is an extraordinary intrusion into state sovereignty. I mean, the Supreme Court recognized this in the Katzenbach case when they first upheld it, and the kind of intentional discrimination that still occurs is something that can be remedied through section two. But basically putting these states that are covered into federal receivership - it just doesn't make sense today because the conditions that warranted it 40 years ago just don't exist today.

MARTIN: Spencer Overton, I'm going to give Mr. von Spakovsky the last word because I gave you the first word. So just a final thought from you. I still don't think I really heard an argument from you about the regional aspect of it.

OVERTON: When you look at these areas, they have about 18 percent registered African-American voters, but only about 8 percent of the elected officials are African-American, so I don't know that, you know, they're kind of free and clear in fair places.

But I think that the big picture on this is we've got two big problems in democracy, and the Voting Rights Act is not one of them. One problem is that too few people vote. The second problem is that politicians, political operatives manipulate voting rules in order to determine outcomes to determine which politicians win.

Striking down section five of the Voting Rights Act does not solve these big problems. In fact, it makes these problems worse. It makes it easier for political operatives to manipulate voting rules and suppress voting.

MARTIN: Mr. von Spakovsky, a final word from you. I mean, this is known to be, or generally understood to be a conservative court, so I'm just wondering how you feel that the court is going to navigate this question.

SPAKOVSKY: Well, they actually considered this issue a couple of years ago in a case out of Texas called the Namuto(ph) case. They avoided the constitutional issue there. They decided the case on a statutory ground, but all of the judges, including the liberal judges, talked about the constitutional problems with section five today because conditions have changed so much. And, again, I would go back to - you know, the problems that Spencer is talking about. If intentional discrimination is occurring, you can file a lawsuit under section two and you can have that case remedied.

But Pennsylvania is not covered under section five. Virginia is. Is there such official discrimination in Virginia as opposed to Pennsylvania that Virginia should be covered and Pennsylvania not? Anybody looking at conditions in those two states is going to tell you that that is just not the case.

MARTIN: Hans von Spakovsky is a senior legal fellow at the think tank, the Heritage Foundation. Spencer Overton is a law professor at George Washington University and author most recently of "Stealing Democracy: The New Politics of Voter Suppression." They were both here with us in Washington, D.C.

Thank you both so much for speaking with us.

OVERTON: Thanks for having us.

SPAKOVSKY: Thank you.


MARTIN: Coming up, why in the era of the first African-American president do people of color lag in getting senior posts in corporate America? A recent study suggests that mentoring is key, but that a good mentor is hard to find.

SYLVIA ANN HEWLETT: It is felt that if you pick a protege of the same color, the same sex, you'll be seen as playing favorites.

MARTIN: How mentors can make diversity work for their workplaces and for themselves. That's ahead on TELL ME MORE from NPR News. I'm Michel Martin.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.