Poll tax, 21st century version

By Scott Forsyth The Daily Record Newswire Whereas the 15th Amendment, ratified in 1870, guaranteed African-Americans the right to vote, in practice few could in the south. The states there created a series of voting qualifications and devices, such as the poll tax and the literacy test, that perpetuated black disenfranchisement. When the courts invalidated one device, the states created another or just ignored the decisions. Finally Congress intervened, adopting the Voting Rights Act (VRA) in 1965. It forbids nationwide all electoral practices "which result in a denial or abridgement of the right ... to vote on account of race or color," 42 U.S.C. § 1973. Note that proof of a discriminatory purpose is not necessary. A plaintiff need only show that the practice has the effect of denying or abridging the right to vote on account of race or color. This is an expansion on the U.S. Supreme Court's interpretation of the 15th Amendment. The prohibition of discriminatory practices is very relevant today. Many states have passed or are considering changes to their election laws that will suppress the turnout among the young, the poor, and minorities. The most popular device is a requirement that a person show a government-issued photo identification card before voting. Studies show that as many as 25 percent of African-Americans lack such identification. In addition, three states now require persons to show photo identification at the time of registration. Two states have repealed Election-Day registration. Florida has restricted the ability of third-party organizations to register voters. Seven states have shortened early voting periods. The states justify these changes as measures necessary to decrease voter fraud. Given the few prosecutions for fraud, politics is the more likely explanation. The young, the poor, and minorities tend to vote Democratic. The Republican Party controls the government of the states making the changes. The Supreme Court did accept the fraud justification when it turned back a constitutional challenge to Indiana's photo identification law. However, the court left open the possibility that the law as applied may discriminate against minorities, Crawford v. Marion County Election Board, 553 U.S. 181 (2008). Fortunately, many states that have changed their voting laws or want to do so are not in the same position as Indiana. Before implementing a change, they must demonstrate to a federal court or the Attorney General that the change "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color," 42 U.S.C. § 1973c. The preclearance requirement comes from Section 5 of the VRA. A formula in the law identifies the states and the counties that have discriminated in voting the most. They are subject to preclearance, to remedy the past discrimination and to forestall future discrimination. Currently, Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia are covered in their entirety. Portions of California, Florida, Michigan, New Hampshire, New York (Bronx, Kings and New York counties), North Carolina and South Dakota are also covered. Section 5 is controversial. Opponents argue that it imposes a current burden on states and counties based on past problems that have been corrected. They also argue that the preclearance obligation exceeds Congress' enforcement authority under the 15th Amendment and violates the principle of "equal sovereignty" embodied in the 10th Amendment. Congress has responded to the first argument. The VRA contains a sunset provision. In 2006, Congress extended the law for another 25 years after collecting extensive evidence of recent voting discrimination. Last month a federal judge rejected the constitutional arguments. He held that Section 5 "remains a 'congruent and proportional remedy' to the 21st century problem of voting discrimination in the covered jurisdictions," Shelby County v. Holder, Civil Action No. 10-0651 (Dist. Ct. DC 2011). Expect Shelby County and its allies to appeal the decision. They may find a more receptive audience in the Supreme Court. Justice Clarence Thomas, not surprisingly, has stated in a dissent that the need for Section 5 has passed. While the appeal winds its way up, here's hoping that the attorney general takes a hard look at the new election restrictions and rejects some because of their likely negative effect on the turnout among minorities. ---------- Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com. Published: Fri, Oct 21, 2011