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Weighing The Future Of The Voting Rights Act

Mar 1, 2013



This is TELL ME MORE from NPR News. I'm Michel Martin. Coming up, you've heard the pundits and the politicians give their take on the new S-word - sequestration. We'll ask the Barber Shop guys for their perspective on this later in the program. But first we want to talk about another big topic in Washington this week. That is the challenge to the landmark Voting Rights Act of 1965. That's before the Supreme Court, specifically section five of the act.

The law requires certain places with a history of discrimination to get approval from the Department of Justice or a federal court before changing their voting laws. They call it getting pre-clearance. But places like Shelby County, Alabama say that part of the law is outdated and should be tossed out.

We've spoken with our next two guests extensively about this issue. They were both at the Supreme Court on Wednesday to hear the arguments and they've each written about what they heard and saw that day. Spencer Overton is a professor of law at George Washington University. He previously served in the Obama administration in the Justice Department. And Hans Von Spakovsky is with the Heritage Foundation. That's a conservative think tank here in Washington D.C.

He also served in the Justice Department and was a member of the Federal Election Commission under President George W. Bush. Thank you both so much for joining us once again.

SPENCER OVERTON: Thanks for having us back.


MARTIN: I want to play a piece of tape from our colleague Nina Totenberg. The Supreme Court is making audio available today, but before they do here's Nina setting the scene. She's playing the part of - or reading the part of Justice Sandra Sotomayor speaking to the lawyer for Shelby County, Alabama.

NINA TOTENBERG, BYLINE: Assuming that I accept your premise, that portions of the South have changed, your country pretty much hasn't. The Justice Department has blocked 240 proposed changes. Why would we vote for a county whose record is the epitome of what caused the passage of this law to start with?

MARTIN: So, Spencer Overton, what is she talking about?

OVERTON: She's talking about the fact that in 1965 Congress passed the Voting Rights Act to prevent voting discrimination in particular states in the country. And this turned out to be the most powerful tool in the history of our country, in terms of combating discrimination. And it's powerful because it's unique.

What it does is it puts the burden of addressing discrimination on the states as opposed to putting the burden on victims of discrimination. It's been so effective that within 30 years the number of elected African-American officials jumped from 72 all the way up to 5,000. Now, in 2006, Congress renewed section five of the Voting Rights Act. Congress found that discrimination remains concentrated in these covered states.

And the question before the court, right now, is whether that decision in 2006 to cover nine states and parts of seven others is constitutional.

MARTIN: And of course, I misspoke and I meant Sonia Sotomayor. I was thinking about the previous Supreme Court Justice, Sandra Day O'Connor who has since retired and has gone on to a distinguished second career as an author. So I apologize for that. So Hans Von Spakovsky, what was the Shelby County attorney's response to this? What data did they present to show that the law is no longer needed?

SPAKOVSKY: Well, the real concentration was on the triggering formula that is what established that states like Alabama are covered. And that formula is 50 years out of date. In other words, Alabama is covered today because of low registration and low voter turnout, particularly black voters, back in the 1964, 1968, and 1972 elections. Congress didn't update that when it renewed it in 2006.

And in fact, the Chief Justice, at one point, asked the Solicitor General Donald Verrilli. He said, well, look, in 2005, the year before it was renewed, you know, how many voting changes did the Justice Department get to review from the covered states? He answered, well, 3,700. How many objections were there? In other words, the Justice Department saying this is discriminatory and needs to stop. Only one.

That is not evidence of widespread and persistent discrimination and that's what the Supreme Court justified section five back in 1965.

MARTIN: We're not going to litigate this here, but I did want to ask each of you, since you were both in the court, there was some very intense questioning on both sides - on this. And what's interesting to me in reading the columns that each of you wrote about them subsequently is that each of you seem to find the comments from the other side, kind of, a little bit out of bounds.

So I'll start with you, Spencer Overton, on that. You wrote an entire piece based on a comment from Justice Scalia where he suggested that Congress might be perpetuating racial entitlements. He said that basically members of Congress have no incentive to vote against this. I mean, you were referencing the fact that when this act came up for renewal previously, the vote to renew it was almost unanimous.

And Justice Scalia said that that was reflective of political pressure and he says I'm fairly confident it will be reenacted in perpetuity unless a court can say it does not comport with the constitution. And I think you found this, among other commentators, found this outrageous. Could you talk a little bit more about that?

OVERTON: Yeah. It was a political rant. It was like Rush Limbaugh here. You know, someone could easily say, well, do you object to the Voting Rights Act because you want to perpetuate racial entitlement by whites? You know, you could flip it around. It's inappropriate. It's an inappropriate statement in a court of law. It's not legal and it shows exactly why we should defer to Congress to determine that voting discrimination remains concentrated in covered states as opposed to the court.

They're basing this on, you know, political assumptions and judgments as opposed to law.

MARTIN: Hans Von Spakovsky, do you think that's a fair criticism?


MARTIN: Or did you think the comment was OK, it was appropriate?

SPAKOVSKY: No. I think it's a fair criticism and it exactly describes the renewal of section five. Because, look, one of the biggest problems with section five is...

MARTIN: No, I'm sorry. I'm confused. Are you saying - did you think Justice Scalia's comment in the court was appropriate or did you think it was - did you also think it was out of bounds, even if you agree with his conclusion?

SPAKOVSKY: No, I don't - no. I don't think it's out of bounds at all. Because it brings up the issue of the fact that race has been made a predominating factor in voting changes, particularly redistricting in the South. And it has led to, basically, segregated districts. And Democrats like that because it gives them safe districts on one side.

Republicans, unfortunately, like it too because by creating these majority/minority districts with a large black population, it takes black voters out of surrounding districts and gives them safe Republican districts instead of having people who have to work to appeal to a broad range of individuals, no matter what their color and what their beliefs.

MARTIN: You also criticized Sonia Sotomayor, Justice Sotomayor's questioning with - you said you noted that she had very sharp questioning and it ran almost 20 minutes longer than the hour allotted. And you said that she asserted, incorrectly, that Alabama, and particularly Shelby County, continue to have bad discrimination records in voting. Do you think that her comments were out of bounds?

SPAKOVSKY: No. I just think she got the facts wrong. I mean, look, Alabama in the last 12 years has only had one - one - objection from the entire state of Alabama. And it's been almost 20 years since the state as a whole had an objection to a statewide voting change.

MARTIN: Professor Overton?

OVERTON: Hans is talking about facts here. Congress heard facts. In 2006 they had 21 hearings, 90 witnesses. A 15,000 page record was produced. And they found that voting discrimination remains covered - remains concentrated in Alabama and these covered states. They didn't focus on registration rates. That's an old problem. They looked at new problems.

New problems like voting rights violations. And what they found was that even though the covered jurisdictions only account for 25 percent of the population, they produced 80 percent of the voting rights cases that were successful, where discrimination was shown. They also found that there was extreme white block voting, that it was twice as likely in covered jurisdictions as uncovered jurisdictions.

So there is a significant difference. Congress found it and we need to defer to Congress' judgment.

MARTIN: We're talking about the Supreme Court arguments this week on the Voting Rights Act of 1965. I'm speaking with Professor Spencer Overton. He formerly served in the Obama administration in the Justice Department. That's who was just speaking. And the Heritage Foundation's Hans Von Spakovsky. He formerly served in the administration of George W. Bush also in the Justice Department.

We have about three minutes left and I want to ask each of you, always a dangerous thing, to predict where the court will go on this. I mean, because there is a conservative majority, Hans Von Spakovsky, I think most people assume that there will be a conservative majority to agree with Shelby County, the litigants in this case. And do you think that that's accurate? Forgive me for asking you to predict on such a complex matter, but...


MARTIN: ...I am going to ask you to predict.

SPAKOVSKY: Well, frankly, ever since the health care decision, I've given up trying to predict how the Supreme Court is going to act. But, look, it's very clear that many of the justices were very skeptical of the idea that the South is, today, still so different from the rest of the country that it basically needs to remain in federal receivership.

Justice Kennedy, of course - I think Spencer would agree with me - is - we all see as the swing justice. How he's going to rule in this, I don't know. I do know that it wasn't too long ago that he actually wrote the opinion in a case called Miller v. Johnson, which was a case that went through and documented some of the abusive enforcement practices of the Justice Department and, in fact, highly criticized the Justice Department for its enforcement of Section Five in that particular case.

MARTIN: Professor Overton?

OVERTON: I think it's difficult to predict. I think the court should not engage in judicial activism here in terms of striking this down. It should defer to the text of the 15th Amendment, and again, defer to Congress' determination that voting discrimination remains concentrated in these covered areas.

Let me say, if it is struck down, political operatives are going to have even more of a free hand to gerrymander, to enact barriers to voting. You know, recently, Section Five blocked voting discrimination in Florida, Texas and South Carolina, and that type of voting discrimination will persist. And we're going to have even more lawsuits because preclearance won't prevent that voting discrimination. Local levels will be hit hardest because, you know, minority voters in a small town in Alabama aren't going to bring a lawsuit. They're not going to have the money to bring a lawsuit for a polling place change.

MARTIN: I gave Spencer Overton the first word, so Mr. von Spakovsky, I'm going to give you the last word. A final thought from you?

SPAKOVSKY: Well, the final thought is, is that - look. The South has changed. The idea that discrimination is still concentrated there is not true and, in fact, the evidence shows that that is not true. And there's no reason why Section Two of the Voting Rights Act, which we haven't mentioned, which makes - which bans racial discrimination, it's nationwide. It's permanent. That is the remedy for this kind of discrimination.

MARTIN: Hans von Spakovsky is a senior legal fellow at the Heritage Foundation. That's a conservative research organization, a think tank. He was here with us in our Washington, D.C. studios, along with Spencer Overton. He's a law professor at George Washington University.

You've both been with us to talk about important matters before the court before, and we thank you for joining us once again. We do hope you'll come back and see us once again. Thank you both so much for joining us.

SPAKOVSKY: Sure, thanks.

OVERTON: Thank you. Transcript provided by NPR, Copyright NPR.