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The Incurable Fungus: Section 5 of the Voting Rights Act of 1965

January 10, 2012

1. History, 2. Law

The Incurable Fungus:  Section 5 of the Voting Rights Act of 1965

We are certainly familiar with the refrain that a federal law that creates jobs for federal employees has zero chance to die a timely death.  A section of a 1965 law was supposed to die in 1969, yet it lives still.  Worse yet, the law gives the feds jurisdiction on the topic over only a handful of states.  If the watched-for “violation” crops up in a different state, the courts handle it just fine thank you very much.  So why the dual systems?  As I opened – it creates federal jobs.

Enter Section 5 of the Voting Rights Act of 1965.  Why do we care on a predominantly criminal-law blog?  Because it goes to the very heart of the Constitution – If we can’t choose our leaders in a manner free of political manipulation, then all will be lost.  And since the overseeing body is the US DOJ, politics run deeply.

We have one rule in this country if you want to vote:  Be a citizen.  Everything else flows from there, including registration, voting places, district lines, etc.  Our history is replete with boneheads trying to infringe upon this basic right, from 1960s buffoons trying to stop blacks from voting to 2008 girls from the hood with billy clubs standing oh-so-ever menacingly in front of a Philadelphia polling place informing us that a black man was to be elected.  Discrimination based upon immutable conditions is a joke, and when it affects voting it becomes pathetic.

What’s the number one issue being killed by the US DOJ through Section 5 oversight?  Voter ID.  Someone, please, explain to me how requiring a person to show photo identification at the polling place is bad in any form.  With the current system, I can show up at a polling place and vote for my friend!  That is not honest.  Don’t we want to take simple measures to optimize honesty in the system?  The putative argument is that minorities will be disenfranchised if they are required to show ID.  Too funny – who thinks this stuff up?  By the same token, I guess it’s OK to stop minorities from buying drain cleaner.

Here’s the full list of jurisdictions that cannot make changes to their voting laws without the US DOJ advance approval.  Included are the following states: Alabama, Alaska, Arizona, Georgia (except for the city of Sandy Springs), Louisiana, Mississippi, South Carolina, Texas, and Virginia (except for fourteen counties – Amherst, Augusta, Botetourt, Essex, Frederick, Greene, Middlesex, Page, Pulaski, Roanoke, Rockingham, Shenandoah, Washington and Warren – and four independent cities – Fairfax, Harrisonburg, Salem, and Winchester.)  The full list informs of the smaller sections of certain other states that fall under the DOJ’s thumb.

What does this mean?  Assume that Pennsylvania and Texas wish to redraw their Congressional District maps.  This happens every ten years as a result of the Census.  These maps are created by the state legislatures and signed off by the governor – just like any other piece of legislation that becomes law.  Pennsylvania implements their new map.  If it is discriminatory in any manner, or another basis is present to contest the constitutionality of the map, a lawsuit ensues.  The courts decide if the map is consistent with the Constitution.  That decision, after all, is precisely the function of the courts.

Texas, however, must first submit its map to the US DOJ.  The DOJ decides whether they like it or not.  This brings the issue of constitutionality to the Executive Branch – and at the federal level.  This is not the way our government was established.  And we’ve seen plenty of political games played by the US DOJ over the decades with seemingly more than ever in this Administration.  It’s wrong.

And it’s wrong for another reason:  Why is there a federal law that treats the states differently?  Yes, in 1965 there was a bleeding issue that needed to be addressed.  Yes, it could have been addressed through the courts, but the Johnson Administration wanted quicker action – Speech to Joint Session of Congress, legislation, law.  But even us lawyers understand that sometimes the emergency is over, and we are required to return to normal operating procedures.  That has never happened with Section 5.  It’s just grown and grown and grown.

Here’s how bad the voter-registration rolls are in this country.  This, from South Carolina:

The state Department of Motor Vehicles audited a state Election Commission report that said 239,333 people were registered to vote but had no photo ID. The DMV found that 37,000 were deceased, more than 90,000 had moved to other states, and others had names not matched to IDs. That left only 27,000 people registered without a photo ID but who could vote by signing an affidavit as to their identity.

In 2006, there were 2.4 million registered voters in SC.  That leaves 1.125% that better get off their butt and get a photo ID.  All it would take is a photo ID at the polling place to ensure the votes are clean – or, at least, cleaner.  What’s the big deal?

SCOTUS will hear oral arguments on the Texas Redistricting plan on January 9.  Here’s the State of Texas’ brief and an article discussing it.  Section 5 is not the heart of the case, but Texas is going after it.

Will Section 5 finally die?  It’s a fungus without a cure.  Shameful.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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