As Selma, Alabama hosted a commemoration this weekend of the 1965 marches for voting rights, the first of which is known as Bloody Sunday for the violence protesters endured, the US Supreme Court’s conservative majority is probably about to gut the Voting Rights Act and fundamentally undermine the right to vote for lots of people.
The case centers on Section 5 of the Act, which mandates that certain jurisdictions have to clear any changes in their voting laws with the Department of Justice. As The Daily Beast put it, “Section 5’s innovation was to stop the discrimination before it occurs. By forcing jurisdictions—mostly, though not exclusively, in the South—to gain preclearance, the Voting Rights Act stops potentially discriminatory laws from being put into place to begin with.”
The complaint is about singling out those particular places, and as the Washington Post explained, “The Supreme Court’s conservative majority strongly suggested Wednesday that a key portion of the landmark legislation protecting minority voting rights is no longer justified and that the time has come for Southern states to be freed from special federal oversight.” (Incidentally, it’s not just the South: also covered are the states of Alaska and Arizona and counties in South Dakota, New York, Florida, and California, including the one across the river from where I grew up. Full list.)
The way the issue was addressed included some particularly appalling soundbites, as when “Justice Antonin Scalia said Congress’s decision in 2006 to reauthorize the law was a result not of a studied decision but of a ‘phenomenon that is called perpetuation of racial entitlement,’” because apparently the desire to be able to vote makes one “entitled” rather than exercising a guaranteed right (WaPo).
But it’s not totally off-base to argue against it. Just not in the same way.
I think about Section 5 the way I think about a lot of things—affirmative action, hate crime laws, etc—it doesn’t solve the problem it’s supposed to, and in fact defines the problem in a way that makes it harder to solve . . . but we can’t afford not to do anything at all.
I do think that singling those jurisdictions out is a problem. The San Francisco Chronicle noted that “Chief Justice John Roberts, a vocal skeptic of the use of race in all areas of public life, cited a variety of statistics that showed starker racial disparities in some aspects of voting in Massachusetts than in Mississippi.” Though those statistics are probably cherry-picked, he’s right that the South isn’t the only place with an institutional discrimination problem.
I mean, clearly these particular jurisdictions have ended up on the list because they do have a history of obvious institutional racist action that weighs on the present. As Justice Sonia Sotomayor pointed out in the proceedings, “it was a recent violation by a town in Shelby County that led to the current case. ‘Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?’ she asked” (WaPo).
The problem with Section 5 is that it defines the problem in a way that makes it harder to solve: It implies that election laws other places don’t need scrutiny for how they disenfranchise people of color. But they do. They desperately do.
The recent spate of Voter ID laws, for example, make voting harder for poor people, and people of color are disproportionately poor. Unimaginable as it may be for the middle class, lots of people live without state-issued ID, because they don’t drive, don’t use checks, don’t have a bank account, etc. Demanding that people get an ID in order to vote is a de facto poll tax.
It may be “just a few dollars,” but for people truly on the edge every penny counts; as eloquently described by John Scalzi, “being poor is six dollars short on the utility bill and no way to close the gap.” That person can’t afford the 20 bucks an ID costs here in Illinois. And the actual fee doesn’t account for work time lost to go to the DMV, since the working poor tend not to have jobs where they have paid time off.
On top of that, the kinds of documents one needs to prove one’s identity aren’t always readily available if your parents were also poor or if you were ever homeless. Not to mention the ways the requirements for replacing documents are self-referential: generally, all of the forms of ID you need to get a Social Security card require a Social Security card to get. So good luck with that.
Moreover, navigating bureaucracy to get any of these forms of ID—or to apply for a hardship exemption on the fee, say—is a middle-class skill that poor folks often don’t have. And even if they do, getting overworked, underpaid, badly treated and generally grumpy bureaucrats to help, well, Scalzi again: “Being poor is people surprised to discover you’re not actually stupid. Being poor is people surprised to discover you’re not actually lazy.” (Read the whole thing. And the additions to the list in the comments. It’s amazing and wrenching.)
This is just one requirement, voter ID, but we can see how it fundamentally undermines the supposedly guaranteed right to vote. Middle-class people of color won’t have problems, which then opponents of laws like Section 5 can then point to as evidence that protections aren’t needed, but they clearly are. Just because suppressing the right to vote doesn’t look like this picture on the right anymore, people argue that it no longer exists, but I’ve just shown how the same problem has taken new form.
The challenge here is that the discrimination is most immediately and clearly on the basis of class, which is currently not a protected category (even though it really should be, but what can you do when the law is fundamentally an essentialist enterprise?). Again, the problem gets defined in a way that makes it harder to solve.
Of course, due to histories of discrimination people of color are disproportionately poor, which means that this has a disproportionate impact on them. There’s a reason that things like poll taxes and literacy tests worked as a way to keep black folks from voting in the South. (And, the history is less well known, but probably Native folks in Alaska and Latinos in Arizona were subject to similar obstacles to land those states on the list.)
Voter ID has both a financial and educational component, so it’s even more efficient. It also seems reasonable and uncontestable because it plays into post-9/11 paranoia and surveillance culture.
But it’s not just being implemented in the South, and neither are any of the other ways voting is being restricted. And again, legally confining the problem to those jurisdictions might make the rest of the country feel better, but it doesn’t improve people’s capacity to vote.
The Washington Post says that
“The symbolic significance of Section 5 could make the court reluctant to strike it down entirely. Instead, the justices could keep the section but declare that the formula used in selecting the covered states is outdated and must be revisited. Proponents of the law say that would effectively doom Section 5, because it would be hard to get a new formula through a partisan and polarized Congress.”
What’s important to realize, though the law doesn’t and can’t, is that the symbolism, the encoding in law of the idea that you can’t change your laws if it’s going to disenfranchise people, acts as a levee against change even in jurisdictions that aren’t directly subject to it. If it goes away, the dam is open for everyone. (Even more than it clearly is now.) This is the same reason that I see a silver lining in hate crime legislation.
Killing Section 5 by asking for a reworking isn’t acceptable to me, obviously, but in a perfect world I would indeed want a reworking, to take into account precisely the ways that the problem of disenfranchisement looks different now and our old modes of protection just don’t work. In fact, though clearly it’s incompatible with judicial and political reality, I’d advocate for extending it to every voting rights change instead.
We hardly know voting rights in any meaningful sense already—the promise of the universal franchise is persistently undermined by an apathetic and uneducated populace, massive advertising expenditures, the talking head class, and the modes of disenfranchisement already built in—but we need this one. Even if it can’t be expanded, we need the line to hold.