Jocelyn Benson on the U.S. Supreme Court’s ruling on the Voting Rights Act
By Steve Thorpe
sthorpe@legalnews.com
Although somewhat overshadowed by an historic decision on gay rights, the U.S. Supreme Court also recently announced a decision striking down a key plank of the Voting Rights Act. The decision invalidated the part of the Voting Rights Act that required some areas in 15 states to get advance clearance from the Department of Justice before any voting changes can go into effect, and it dramatically eases the way for states to push through new election requirements. Some states such as Texas moved within hours of the landmark ruling to implement stringent voter ID laws, requiring voters to show valid identification before they can cast ballots. Jocelyn Benson is the interim dean of Wayne State University Law School. She is an expert on election law, education law, race and the law and civil procedure. Benson founded and is executive director of the nonpartisan Michigan Center for Election Law, which hosts projects that support transparency and integrity in elections. Benson also founded and is president of Military Spouses of Michigan.
Thorpe: Penda Hair, co-director of the voting rights group Advancement Project, said that the effects of the ruling could be “devastating and immediate.” Overstatement?
Benson: Not at all. The ruling effectively gutted the heart of the law that has worked effectively for decades. It was a striking act of judicial activism that ignored a voluminous legislative record steeped in examples of ongoing acts of voting discrimination in certain parts of our country.
Thorpe: States no longer carry the burden of proving upfront that their laws don’t discriminate. What will be the effect of that?
Benson: Without the federal government playing as strong a role in ensuring that no voting law goes into effect that would harm minority voters, it is up to leaders at the state level to ensure voters’ rights are protected. Attorneys general and secretaries of state specifically need to embrace a leadership role in being advocates for voters and guardians of the democratic process.
Thorpe: Most readers would associate the provision of the VRA that the court overruled with the South, but there is a Michigan component. Tell us about preclearance and the role it played.
Benson: The preclearance provision is the “shield” of the Voting Rights Act. It requires certain states and localities with the most egregious history of discriminatory practices to submit all election law changes to the federal government for pre-approval. The idea was simply to block states and localities from enacting discriminatory voting laws before they could be implemented. Importantly, the court didn’t reject this concept of preclearance. But Chief Justice John Roberts did reject Congress’s method of determining which areas of the country should be subject to the coverage, denouncing it as a formula based on “decades-old data and eradicated practices.”
Many of these states and localities were located throughout the South because they had a history of requiring literacy tests and other things that made it more difficult or impossible for African Americans to participate in the past.
But the law also covered two local jurisdictions in Michigan: Buena Vista Township in Saginaw County and Clyde Township in Allegan County. They were covered because both areas had many eligible voters who speak English as a second language, yet neither jurisdiction provided translated election materials for these voters.
Thorpe: Experts say the ruling has effectively removed “preclearance,” which critics said unfairly subjected some states to federal scrutiny that some claim is no longer warranted. Is it?
Benson: Justice Ruth Bader Ginsburg emphasized in her dissent that “throwing away preclearance when it has worked … is like throwing away your umbrella in a rainstorm because you are not getting wet.” The five justices in the majority assumed that because threats to our democracy don’t come in the dramatic form of tear gas and billy clubs, they are somehow less real. But democracy is threatened any time an eligible voter is disenfranchised, every time a law is enacted on specious grounds that extend the time required to register or to cast a ballot, and any time gerrymandering results in districts that silence a community’s voice.
Thorpe: The process now goes back to Congress, which could rewrite which states and counties would be covered under the VRA. Do you foresee that happening and how might it unfold?
Benson: This is a great opportunity for Democrats and Republicans in Congress to come together and modernize the Voting Rights Act. U.S. Sen. Patrick Leahy already has held hearings in the Senate to begin this important discussion. If Congress doesn’t act, this decision will have a detrimental effect on the hard-won progress toward equality and justice for all that we have made since 1965. But it has a chance now to preserve the voice of every citizen and ensure that the promise of “one person, one vote” remains a reality.
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