section five

the supreme court heard arguments yesterday on a case brought by shelby county, alabama concerning the validity and necessity of continuing section 5 of the voting rights act which requires federal review of changes to voting and registration regulation in nine states and other counties throughout the country.  the county in alabama argues that the law has outlived its usefulness and succeeds only in continuing to shame certain states and counties for past transgressions and tensions with racism.  adam liptak in his coverage of the arguments for the new york times reports that the conservative members fo the court seem to be leaning toward agreement with this argument.  in writing for the majority for a 2009 decision which considered the constitutionality of the 2006 extension of the law, chief justice john roberts wrote, "Voter turnout and registration rates now approach parity.  Blatantly discriminatory evasions of federal decrees are rare.  And minority candidates hold office at unprecedented levels."

i have to question if parity between registration and turnout is really a great measure of inclusiveness and access.  and just because there are more minority politicians than ever before does that actually correspond to true political representation of minority communities.  finally, i have to wonder if perhaps violations of federal decrees are no longer blatant but rather now discrete and systemic.  i posted recently that adam liptak mentioned another recent case in alabama that ruled against changes to voter registration regulations, changes that disenfranchised a significant portion of black voters and seemed to systematically cheat a large black community from accurate representation.

in this article today, charlie savage outlines the difference between section 5 and section 2 of the voting rights act.  should section 5 of the act be struck down by the court, guarantees the entire country freedom from discriminatory voting policy.  however if discrimination the legal burden of proof resides with different sides depending under which section the discrimination is found.  Under section 5, the "jurisdictions, because of their history of discrimination, must prove that any proposed change would not make minority voters worse off... By contrast, under Section Two, the burden of proof is on a plaintiff to demonstrate in court that a change would prevent minorities from having a fair opportunity to elect representatives of their choice."  With section 5, a federal court in Washington, D.C. must determine whether a change in voting law would adversely affect a population that had been discriminated against in the past.  greater liberty with redistricting could be used to effect a greater representation of the populace, but the voices of certain minority voices could be under-represented.  let's be frank, politicians across the nation use gerrymandering to disempower not only blacks but ethnicities across the country; democrats and republicans use redistricting against each other to maintain power.

there may have been a time i would have argued that this provision of the voting rights act seems to unfairly shame a new generation of alabamians, of southerners, of men and women who may not share the same prejudices of their forebears.  however the more stories of fraud and disenfranchisement emerge the more i understand that even as slowly each generation may shed the racism that existed before, the legacy of that ignorance continues to hinder true equality for all communities in this country.