A Few More Thoughts on the Voting Rights Act of 1965

We are at the end of August and this writer would like to express a few thoughts on the Voting Rights Act of 1965, which was signed into law 50 years ago this month.

The Voting Rights Act of 1965 is one of the most successful statues in American history. Congress passed the Act to enforce the Fifteenth Amendment’s command that voting cannot be denied to anyone on account of race or color. As a result of the Voting Rights Act, black Americans across the country have access to the polls. Black Americans across the country, especially in the South, have been elected to political office in much greater numbers since the Act was passed. Black Americas across the country witnessed — and greatly contributed to — the election of the current occupant of the White House.

While the Act has had success, there have been abuses.

The Voting Rights Act prohibits drawing election districts that would improperly dilute the voting power of black Americans. The term “cracking” describes dividing a black community among several voting districts, so even if blacks voted as a block, they would not be able to influence any election in most instances. The prohibition of improperly drawing districts is fitting and proper. Unfortunately, the politicians have reinterpreted this to mean that it is proper to affirmatively drawn districts in such a way to pack a sufficient number of blacks in the district to guarantee that a black wins the election.

This is bad policy, bad politics, and bad law.

The policy is bad because drawing black-dominated districts tends to attract politicians who can only get elected in such districts. It is worth noting that not one House member in the history of the Congressional Black Caucus has ever been elected to the Senate. This is because blacks who get elected in such districts have not developed the political skills to attract significant voter support from those who are not black.

It is bad politics because nearly all (if not all) of blacks who get elected to Congress vote for policies that are not helpful to blacks. For example, members vote in favor of the minimum wage, which makes young blacks less employable because they become too expensive to hire. Members vote against expanded school choice options (vouchers), which would help black parents send their children to better schools. And members support so-called comprehensive immigration reform, which is amnesty for those in the country illegally. If those who are in the country illegally — many of whom are low skilled — become legal, in many instances they will compete with black Americans for jobs in the general economy. These black Representatives routinely vote against the interests of black citizens.

This is bad law because nowhere in the Fifteenth Amendment does it say or imply that elected politicians need to be of a particular race. Blacks were guaranteed the vote, not office.

Congress amended The Voting Rights Act so that it now covers language minorities. Hispanics and other minority groups also complained about discrimination in voting. Turns out the fact that many voters, who had limited proficiency in English, equated having ballots and voting literature printed in English to literacy tests that prevented blacks from voting during the Jim Crow era. This comparison was pretty outrageous. Congress, however, amended the Act to prohibit English-only literature in “language minority” areas. The constitutional problem here is that the Fifteenth Amendment, which the Voting Rights Act enforces, prohibits denying the vote on account of race or color. Speaking only Spanish fluently is neither a race nor a color. Also, non-English speakers are immigrant populations. Americans are under no obligation to provide such accommodations to immigrants who voluntarily came to the United States. The Voting Rights Act is primarily for black Americans, who have been in this country since prior to its founding. The Africans who came here did not choose to come to the United States. And given the tragic history of the treatment of blacks, the country is under some obligation to see to it that black Americans get to exercise every right that comes with being an American. It is simply wrong to assert that “language minorities” have the same claim for such remedies.

When Congress passed Voting Rights Act, Section 5 was included. Section 5 was a temporary measure that gave the federal government oversight over “covered jurisdiction” that the Act identified. The jurisdictions were mostly in the South. The oversight mandated that any change to any election procedure had to be “pre-cleared” by the federal government. In 1965, this was necessary. Jurisdictions in the Deep South resisted civil rights for black Americans. Whenever a state would be sued because of a policy or procedure making it difficult for blacks to vote, the state would change the policy to some other impediment preventing blacks form voting. The Southern states would stay one step ahead of the law. The pre-clearance provision put an end to this practice. There was one problem though. Pre-clearance, on its face, was at odds with the Tenth Amendment’s guarantee that any function not specifically delegated to the federal government would be reserved for the states. Pre-clearance effectively placed the federal government in charge of running elections in the South, a function that would normally be reserved for the states. The Supreme Court approved pre-clearance in 1966, as a temporary measure (initially five years), so that the rest of the Voting Rights Act could do its work. In time, the authors of the Voting Rights Act understood, the resistance to civil rights would wane, pre-clearance would become unnecessary, and Congress would not vote to reauthorize Section 5 when that time came. In 2006, Congress reauthorized Section 5 for the fourth time; the Senate vote was a unanimous 98-0. President George W. Bush then signed it into law. That reauthorization, like the one before it, extended the pre-clearance requirement for 25 years. Forty-one years after the passage of the initial act, the Southern states were still not trusted to conduct its elections. It was pretty clear that the Congressional reauthorization process was a sham. Congress would never not reauthorize Section 5. Most members of Congress would not want the publicity of voting against Section 5 because it would be implied in the press as voting against the entirety of Voting Rights Act. Members of the media would make famous any prominent politician who voted against the reauthorization. In 2013, the Supreme Court ruled that Section 4 was unconstitutional. Section 4 determined which jurisdictions would be covered. Since the Court found the formula in Section 4 unconstitutional, Section 5 is now unenforceable.

The Reluctant Conservative believes that the underlying reason why Congress reauthorized Section 5 — and would continue to do so had the Court not stepped in — is because many Americans, particularly those on the Left, want the American South to continue to wear the stigma of racism. Section 5 is the South’s Scarlet Letter. While it is the case that, as with the rest of the country, there is racism in the South, it is also the case that it is no longer 1965. The South, like the rest of the country, has changed. Many in the country do not want to acknowledge this. And politicians in Washington, D.C., reflecting this sentiment, chose to misuse the Voting Rights Act of 1965 to, among other things, stigmatize their fellow citizens.

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