How to Fix the Voting Rights Act

by Benjamin Studebaker

Back in June, the Supreme Court voted 5-4 to strike down Section 4 of the Voting Rights Act of 1965. Through negligence, I never got around to writing about it. Today, however, the Department of Justice has decided to attempt to circumvent the court’s ruling, asking a federal court to require the state of Texas to get federal clearance before it makes changes to its voting laws. This is as good a segue as any into discussing the quality of the court’s ruling and how the rest of the state ought to respond to it.

A brief disclaimer before we begin here–in order to meaningfully participate in this conversation, it is necessary that we suspend the running critique of democracy in this post. We must take as given that our state is committed to being broadly democratic and ask how it can best square that commitment with other moral and political principles, such as equal concern for the interests of citizens irrespective of background. In other words, given that we’re going to let lots of people vote who perhaps should not vote, it is important that we do not, on top of that, discriminate on the basis of race. With that in mind, let’s proceed.

I observed that the media’s response to the ruling was to declare that the court had chosen to gut the Voting Rights Act. This somewhat demonizes the ruling–Section 4 was struck down not because it protected voters, but because it was itself discriminatory. It protected some voters more than it protected others. How was it discriminatory? Under Section 4, the federal government pre-screened changes to voting laws only in some parts of the country on the basis of whether or not the states and municipalities in question had a history of attempting to stop black people from voting. The formula for determining whether or not to pre-screen laws had more to it than “is there a history of racism?”, but taken together, that was its de facto effect. Congress struggled to agree on this formula, and, as a result, it has refrained from revising it in the decades since, attempting to avoid having to once again open up that can of worms.

The court ruled that the formula was deeply out of date, and it very surely was–basing which states and municipalities are to be pre-screened based on the laws those states had on the books pre-1965 unfairly penalizes populations most of whom were non-voters when the Voting Rights Act was itself passed. Most Texans living today never voted in support of say, a poll tax.

Nonetheless, it is undoubtedly true that people in some parts of the country are more predisposed to racist views than people in the rest of the country. For instance, in Alabama, 21% of people think that interracial marriage should be illegal. Nationally, only 14% disapprove of interracial marriage, let alone think it should be illegal. The gap, however, is smaller than it was in 1965, when there was a region of the country in which interracial marriage was actually illegal:

Grey states never passed laws against interracial marriage; green states repealed them before 1887; yellow states repealed them between 1948 and 1967; red states did not repeal them until the Supreme Court forced them to in 1967.

We are no longer living in that America, but it would be deeply naive to imagine that states and municipalities are not at least somewhat likely to pass discriminatory voting laws, particularly when the party in power in those states or municipalities tends to fair poorly with minority voters (i.e. the Republican Party). For this reason, the Voting Rights Act still matters.

The congress of today is, however, even more disagreeable than the congress of 1965. In 1965, democrats had the presidency and a super majority in both houses of congress. Can today’s congress reach a compromise on a new formula for allocating federal pre-screening? If the flailing immigration reform compromise is any guide, the chances seem doubtful, and the immigration reform bill is relentlessly far right. If congress were to reach a compromise, it would likely nonetheless result in a weakening of the existing regulatory system, either resulting in much reduced pre-screening or pre-screening of a more limited variety of changes to voting laws.

But why should congress make a new formula in the first place? Why not take the equality of our states and municipalities seriously and just pre-screen everyone? If everyone is pre-screened, the law ceases to single out states and municipalities on the basis of their pre-1965 behavior, it ceases to be discriminatory, and it becomes capable of stopping not just racist voting laws in the south, but racist voting laws wherever they arise. If the Voting Rights Act is a good law, and for our purposes here in view of my disclaimer, I would contend that it is, enforcing it universally rather than only in some parts of the country and not in others would improve the status quo.

Republicans in congress might well be resistant to universal pre-screening under the Voting Rights Act, but they might also be reluctant to be seen as the party that opposes the Voting Rights Act, given the law’s ubiquity and near-universal popularity. It may be easier politically to apply pre-screening everywhere than it is to devise a new formula to which most can agree. It would certainly be a more equitable arrangement. Instead of receiving the brunt of scrutiny, red states in the south would finally, at long last, be given equal treatment to states in north.

From the perspective of the south, the Voting Rights Act’s show of preference for the north could be viewed as a holdover of the reconstruction period. It might help reduce the south’s sense of alienation for the same checks and screening to be applied even to traditionally less racist states and regions.

I have not seen this argument made anywhere, but it seems fairly obvious to me–it would be best if all states operated under the same level of federal scrutiny without historically-based discrimination policies. The very equality the Voting Rights Act exists to promote is undermined when its enforcement is weighted disproportionately.