On Wednesday (Feb. 27, 2013) the Supreme Court heard arguments in Shelby County v. Holder , a lawsuit brought by an Alabama county challenging the constitutionality of Section 5 of the Voting Rights Act.
The Voting Rights Act was originally passed in 1965 to protect minorities against the heinous discriminatory electoral practices that were the norm in the South and elsewhere at the time. To prevent states and counties with a history of discrimination from circumventing the law via last-minute changes, Section 5 requires certain states and counties to obtain pre-approval for any changes in their election laws before implementation. In their lawsuit, Shelby County alleges that the VRA violates the Equal Protection Clause by treating their counties and others like them in covered states differently than other counties and states not covered by the Act.
It's obvious that the VRA treats states and counties differently, but that differential treatment is justifiable, given the history of discrimination in those states. The 15th Amendment prohibits discrimination in voting and entrusts Congress with the power to enforce that prohibition through "appropriate legislation."
The problem, according to Shelby County, was that Congress didn’t update the formula used to determine which areas are covered by the pre-clearance requirement. Thus, there are now areas covered by the requirement whose past history doesn’t justify it. The conservatives appeared to buy this argument, unsurprising considering their near-invalidation in the 2009 case Northwest Austin Municipal Utility District v. Holder .
Different commentators argued for the VRA's continuing necessity, as well as the broader point of the VRA's vital necessity to ensuring the continuing enfranchisement of minorities in our democracy. Recent election cycle showed that there remain a variety of facially nondiscriminatory tactics available to those who wish to disenfranchise minorities–voter ID and gerrymandering most prominent among them but we can’t forget Ohio’s paper weight regulations .
The arguments in this case, however, expose a more fundamental problem with the American electoral system: partisan control. The administration of elections should not be a partisan endeavor, and elections shouldn’t be won by making it easier or harder for people to vote; they should be won by presenting candidates and policies that make people want to vote for you. Political parties shouldn’t compete on the basis of who can suppress the other side’s supporters more effectively. That isn’t democracy.
When a political party can use the power gained in one election to tilt the playing field in a following election, the electoral process doesn’t reflect voter preferences as accurately. Instead, it’s biased towards the party who gained control over electoral mechanisms in the previous election. This has happened across the country after the 2010 Census through gerrymandering and is in part responsible for the Republicans’ current control of the House of Representatives despite losing the aggregate vote for House seats by more than a million votes. Furthermore, it happens in every state, not just the South, e.g. Pennsylvania’s voter ID laws or Ohio’s paper weight requirement.
What we need, then, is a national mandate against partisan control of elections – either a constitutional amendment or an expansion of the VRA. We need to make it easy for people to vote – crazy, right? Will that happen anytime soon? Probably not. But progress is possible: California’s current electoral boundaries were drawn by a nonpartisan citizen commission. While it wasn’t completely free of controversy, the maps drawn produced elections that reflect Californians political beliefs. The Supreme Court take the imprudent course of invalidating the VRA, but what we need is more of what the VRA provides, in a roundabout way: elections on the basis policy instead of voter suppression.
P.S.: As Rachel Maddow said on the Daily Show, Scalia, who effectively described the right to vote as a "racial entitlement," is a troll.
Cross-posted from Somerset Perry’s blog Wilderness Letters .