On Friday, Nov. 9, the Supreme Court said it might eliminate a provision of the Voting Rights Act of 1965: our best tools against discrimination in voting. The provision in question, the preclearance requirement, requires all or parts of 16 states with a history of discriminatory voting practices to get federal permission before changing state voting laws.
Three years ago, when this provision of the law first came under scrutiny, the Court refused a final decision, Justice Roberts calling it a “difficult constitutional problem.” No kidding. In theory, all states should have the same relationship to the federal government. I can understand why people are upset that 16 states have to contend with more federal red tape than the other 34. It’s not right, and in a perfect world, it wouldn’t happen.
But our world isn’t perfect. It wasn’t in 1965 and isn’t now. There are still elements in this country trying to diminish the political efficacy of ethnic minorities, and while they don’t have the level of influence they once did, we still cannot afford to abandon one of our premier weapons against discriminatory voting laws.
Back in 2009, Justice Roberts admitted the preclearance requirement had a hand in improving minority voter registration and turnout, but said the past success of the law was not enough to validate its continued presence in a radically different America. I take some issue with him here: suppose hypothetically our murder rates dipped significantly. Would we suddenly remove some of the laws making it easier for police to crack down on dangerous criminals? Maybe we would. But we shouldn’t, because the benefits don’t match up with the risks.
Even if we choose to accept Justice Roberts’ argument that the past success of the preclearance requirement is irrelevant, we still have the present to examine. If we have any reason to believe that restoring the sovereignty of the states and districts in question would endanger the voting rights of ethnic minorities, then it’s not yet time to restore this sovereignty. And we do have reason to believe this. Look at the slew of vague and easily-exploited voter ID laws that almost came to pass recently; our own Sarah Garcia commented on this phenomenon.
Take, for instance, the Texas law which brought the issue of the preclearance requirement back to light: S.B. 14. This law would have required voters to show photo identification before casting their ballot. Thomas Perez, the chief of the Civil Rights Division, wrote on behalf of the Attorney General, saying that Hispanic voters were more likely to lack proper identification compared to non-Hispanic voters. The Justice Department, in agreement with Perez, blocked the enforcement of S.B. 14.
Voter fraud is a serious problem in theory, but in practice, it doesn’t really happen here. As Sarah Garcia pointed out in her article, a New York Times research committee found only 120 cases of voter fraud filed in five years, out of an average of 200 million voters each year. Considering both the scarcity of voter fraud and the prevalence of racism in this country, one must really call into question the motives behind S.B. 14. Of course, it wasn’t necessarily a ploy to disenfranchise Hispanics. But it could’ve been; its benefits clearly did not align with the costs, and Reconstruction-era discriminatory practices functioned similarly.
We’re caught between two hypocrisies: a federal government which treats some states differently than others and a democratic society which does not take adequate measures to preserve everyone’s right to vote. Ideally, neither of these things would come to pass, but I don’t think I’m alone when I say I consider the latter to be much, much worse. I consider individual rights more important than state rights.