The Voting Rights Act and the 2008 Presidential Election

The Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution – all passed as the Nation sought to secure the “new birth of freedom” President Lincoln had promised at Gettysburg – give Congress a broad power to protect the constitutional rights conferred by those Amendments. Taking up this mantle, Congress in 1965 passed the Voting Rights Act to protect the right to vote secured by the Fifteenth Amendment. One of the Act’s central provisions, Section 5 – known today as the preclearance requirement – requires state and local governments with a history of discrimination in voting to submit all changes to their voting procedures for approval by the Department of Justice or a three-judge panel of the U.S. District Court for the District of Columbia before those new procedures may take effect. The idea was to block states and localities from introducing new rules that would keep people from communities of color out of the voting booth.

The 1965 Congress that passed the Voting Rights Act put the preclearance requirement into effect for 5 years; since then, Congress has renewed it four times, in 1970, 1975, 1982, and most recently in 2006. Congress’s 2006 renewal of the Act’s preclearance requirement has led to loudly-voiced criticisms that Congress lacks the authority under the Constitution to demand this of states. Relying on principles of federalism, some have argued that there is no need today to maintain the preclearance requirement because times have changed and there is less reason for Congress to worry about discriminatory denial of the vote. This is the centerpiece of the argument made by the plaintiff in Northwest Austin Municipal Utility District No. 1 v. Mukasey, which is currently pending before the Supreme Court. In asking the Court to hear its appeal, the district contends that the Court should reject Congress’ finding that there is a continued need for the preclearance requirement.

This argument is not only wrong on the law – it cannot be squared with the text and history of the Reconstruction Amendments, which gave broad authority to Congress to secure voting and other basic rights – but it is wrong on the facts as well. Our current presidential election shows why. This election season, we’ve seen states devise a whole host of new voting measures ostensibly put in place to purge from registration lists persons who are not properly registered to vote. Spurred on by conservative partisans, state officials claim to be worried that voter fraud may be occurring – despite a lack of hard evidence. Many states have been aggressive in checking voter registration lists against a variety of sources, usually driver’s licenses, but also more unusual sources like mortgage foreclosure lists, to determine who should be purged from the rolls. While these new measures are purportedly aimed at the unproven problem of voter fraud many would end up disenfranchising properly registered voters in communities of color and thus trench on the very protections of the Fifteenth Amendment.

The latest example comes from the State of Georgia. Jose Morales, a resident of Georgia, became a naturalized citizen in 2007, and registered to vote in September 2008, in time to participate in this historic presidential election. Unfortunately for Mr. Morales, his driver’s license, issued in 2006, listed him as a non-citizen. During this election season Georgia instituted a new flagging system, verifying voter status using automobile licenses. Under this flagging system, Mr. Morales looked like an ineligible voter, and the State sent him a notice that he would not be allowed to vote in the presidential election. Amazingly, Georgia took this action even after Mr. Morales showed state officials his U.S. passport.

On Monday, citing the Voting Right Act’s preclearance requirement, a three-judge court held that Georgia could not continue enforcing its new flagging system to disenfranchise citizens until it received preclearance from the Justice Department or a three-judge district court. This ruling not only secures the right to vote to Jose Morales (whose right to vote even Georgia finally conceded under the pressure of litigation); it also protects almost 5,000 others whose citizenship was called into question by Georgia’s new flagging system. The case of Jose Morales shows why the preclearance regime is still very much needed. In the throes of a close election, some partisans will seek every opportunity to gain an advantage at the polls.

Section 5 puts the breaks on maneuvers such as that attempted by Georgia, helping to ensure that candidates win elections at the polls, not by ingenious devices to disenfranchise minority voters close to Election Day.