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Friday, March 15, 2013

Shelby County v. Holder - part 1

The 1965 Civil Rights Act was a major milestone in the modern effort to establish voting rights in the US.  It essentially ended the systemwide voter discrimination laws that existed in the South (and elsewhere, but less frequently) at the time.  It was the law that President Lyndon Johnson said would lose the South for the Democratic Party for a generation.  Perhaps he was too optimistic.  The South has already been Republican for more than 1 generation.  Some would say the change is because the Republicans joined the South in its the racism.  Others would say that once the Democratic party was no longer willing and able to aid and abet the South in its maintainance of white supremacy, it still took a generation or so for the region to come into the modern age.

In order to ensure that new maneuvers would not conjured up to deprive certain citizens of the right to vote, Title 5 of the 1965 Civil Rights Act provided that certain states, counties or other subdivisions could not change their voting laws without preclearance by the Attorney General or the DC District Court.   The states which suffered this disability were those who had a record of denying voting rights to certain citizens.
While it was mainly the states of the old confederacy at the beginning, some of them have been removed and some other states and political units have been added.  However, it is still mainly in the South that preclearance is required.

 It is an important principle that the federal government treat each state equally.  It is also an important principle that no state be allowed to deprive its citizens of the right to vote.   Title Five's preclearance requirement for change leaned heavily toward the second priciple because it was the one that was most at risk at that time and the states were abusing their rights by making discriminatory voting laws.  That is (presumably) why it was deemed Constitutionally acceptable.

In 2006 Congress reauthorized Title 5 as it had several times before.  In the case, Shelby County v. Holdercurrently before the Supreme Court the county claims that Congress exceeded its authority by doing that.

I think that the central question here is this:  Does the danger of systemic voter suppression currently warrant the continued disparate treatment of some states and units?

It should be noted that if Title 5 is excluded, it does not mean that units would be allowed to discriminate.  It would shift the burden of proof from the unit to those who claim that discrimination has occurred.  That is, it would be the same as in other states.

Whether these preclearance units have had a change of attitude or whether they are now lurking in the shadows waiting for a chance to deprive someone of voting rights is a question to which I will give my answer later.  However I will say now that perhaps evidence of what they are now doing should play a role in deciding the answer with respect to Title 5 of the Civil Rights Act.   According to Wikipedia:  In 2006, the United States Commission on Civil Rights reviewed the Justice Department Preclearance record and found that the percentage of DOJ objections to submitted changes has declined markedly throughout the 40-year period of the Act: from 5.5 percent in the first period to 1.2 percent in the second, and to 0.6 percent in the third. Over the 10 years prior to the review, the overall objection rate was so low as to be practically negligible, at less than 0.1 percent.[15] The Commission's two Democratic members dissented from the report, charging that the Commission had "abandon[ed] the field of battle."[16]

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