Congress Can Fix Its Mistakes on the Voting Rights Act

By Lynn Westmoreland
Sunday, June 28, 2009

All of the justices of the Supreme Court agreed last week that parts of the antiquated Voting Rights Act pose significant constitutional problems. From a court that could split 5 to 4 over the color of the sky came consensus that Section 5 of the Voting Rights Act imposes severe "federalism costs."

Although the justices punted on the huge constitutional issues underlying the case, the opinion penned by Chief Justice John Roberts echoes the warnings I gave my fellow House members in 2006 when Congress renewed the Voting Rights Act for 25 years.

"These federalism costs have caused Members of this Court to express serious misgivings about the constitutionality of Section 5," Roberts wrote. Justice Clarence Thomas went a step further, outlining why Section 5 now fails the test of constitutionality.

When the Voting Rights Act was passed in 1965, it was needed to correct horrible, widespread injustice. Congress created a formula to determine which states were suppressing the votes of minorities. Nearly all of the Southern states, including my home state of Georgia, failed the test and came under Section 5, which requires some or all of 14 states with a history of racial discrimination to get all electoral law changes approved by the Justice Department before they take effect. This "preclearance" process has been required for every change for most of these states since then.

I fought vociferously to modernize the Voting Rights Act when Congress considered renewal in 2006 in an effort to avoid the constitutional quandary we face today. In closed-door meetings, in open committee hearings and on the floor of the House, I pleaded with my colleagues to change the law to reflect current realities or face the prospect of the court tossing out the law.

Proponents of renewal said they had "15,000 pages" of evidence of "ongoing discrimination." What a joke. Lawyers paid by the hour can produce 15,000 pages arguing against the laws of gravity. The "evidence" was mostly old, isolated stories that amounted to grasping at straws, not substantive verification of patterns of discrimination.

To prove that the states affected by the act still needed to be treated differently by the federal government, I argued, Congress had an obligation to prove that these states were more likely to discriminate than other states. This week, eight justices staked out a similar position, saying the "Act imposes current burdens and must be justified by current needs."

But Congress hasn't investigated problems in any states exempt from the law despite massive legal and demographic changes throughout our country since the Johnson administration. This means any problems that have cropped up in recent years in, say, Ohio or Florida go unaddressed.

The Voting Rights Act was an "emergency" measure intended to stop the systematic suppression of African Americans' right to vote; it was supposed to expire in 1970. Yet 44 years later the "emergency" is still thought to exist -- and it will last through 2031? Please. For that to be true, the act would have to be a complete failure -- and observers would have to be willfully ignorant of the astounding progress that has transformed the South.

Now that Congress knows that Section 5 is on shaky ground, it should reconsider amendments that then-Rep. Charlie Norwood (R-Ga.) and I put forth in 2006.

First, Congress could require that the Justice Department determine which states or counties have long records of voter equality. These jurisdictions would then be freed from Section 5 coverage (just as a handful of Virginia jurisdictions have been exempted from coverage that once included all of Virginia). Only 17 jurisdictions out of the more than 12,000 covered have been exempted since 1982.

Another idea is to update the formula and test all 50 states to see if any are suppressing minority voters. This would allow Congress to search for new problem areas, which could be helpful because many states are much more diverse than they were in 1965. It would also allow covered states that have achieved equality to remove the scarlet letter they inherited from their forebears. It's absurd to judge today's Georgia on the basis of who did or didn't get to vote in the 1964 presidential election, yet this is exactly how the Voting Rights Act works.

Both of these solutions would modernize the Voting Rights Act and correct concerns that Roberts addressed directly.

"Things have changed in the South," Roberts wrote. "Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels."

Thanks for noticing, Mr. Chief Justice. We're proud of how far we've come in the South. Maybe one day Congress, too, will work up the courage to recognize the obvious.

Lynn Westmoreland, a Republican, represents Georgia's 3rd Congressional District.

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