Life After Section 4

I have the pleasure of having friends in all different walks of life who write, speak, preach, and teach on different subject areas. I asked a few friends to write what they thought about the SCOTUS rulings this week and I would share them with the world. Here is one thought, written by my friend Fred Hicks.

 

“My experience with John Lewis in Selma earlier this year was a profound experience that demonstrated the fortitude it took to advance civil rights and ensure equal protection for all… I’m hopeful Congress will put politics aside, as we did on that trip, and find a responsible path forward that ensures that the sacred obligation of voting in this country remains protected.”- Eric Cantor, REPUBLICAN, Virginia

As a political consultant who has, on occasion, successfully navigated the world of Democratic and Republican politics, I bend towards viewing issues through the lens of coalitions rather than partisanship. That is, I believe that at the state and local level we are entering an age when there are few permanent allies or enemies and that policies will be made through fleeting partnerships. Perhaps this is a personal coping mechanism I’ve adopted more than it is a new reality. We will soon know.
Yesterday June 25, 2013 the US Supreme Court struck down Section 4 of the Voting Rights Act of 1965. There are eighteen provisions to the VRA, although most are only familiar with Sections 2 and 5. Section 2 allows for legal redress when someone is denied the right to vote. First the right to vote must be impeded and then the policy can be challenged. In most instances, the legal hearings will not be completed in time to impact the election in question, thus allowing the policies to achieve their goal. This makes Section 2 a reactive legal remedy. Section 5 places certain jurisdictions that meet certain criteria under additional review through a process called Preclearance. Before a jurisdiction covered by Section 5 can make changes to voting processes they must submit a plan to the US Department of Justice for approval. This is pre-emptive. When taken together, Sections 2 and 5 serve as bookend legal protections, in certain jurisdictions, for protecting the right to vote established by the 15th Amendment to the Constitution. Until yesterday most Americans, of any hue, had never heard of Section 4. By now all of you reading this have learned that this is the part of the legislation that uses a formula to determine which jurisdictions are subject to Preclearance. Without a Section 4, there cannot be an effective Section 5, thus leaving only the reactive legal remedy (Section 2) in place. It is the formula laid out in Section 4, not 2 or 5, that the Supreme Court ruled illegal. Further, the Court said that Congress must create a new formula that IS legal, which will be determined by the Courts.
So what does all this mean? There are three things we know for sure:
1) The 9 states and the 50+ counties in five (5) other states are no longer subject to Preclearance. This means they can enact laws regarding voting they deem appropriate, as long as these laws do not violate laws around voting such as using a literacy test or poll tax. Preclearance is over until Congress creates a new formula the Court approves, which leads to points 2 and 3
2) It is up to Congress to create and pass a new formula for determining which jurisdictions must go through Preclearance. This is the same House and Senate that is locked in perpetual gridlock, with one chamber often passing legislation the other kills immediately; even when America’s financial standing is at stake. It is this Congress that now has to come up with a formula
3) Assuming Congress can pass a formula for Section 4, when (not if) the formula is challenged, it must pass the review of the Supreme Court, possibly with the same judges who just overturned a formula that was agreed upon with overwhelming bi-partisan support in both chambers, including the two Senators who represent the plaintiff in the case ruled upon by the Court after and the need for which was supported by thousands of pages of examples of modern day attempts to suppress the vote.
So, Congress must do the near impossible and pass legislation in both the House and the Senate that creates a new formula. The new formula must be able to gain the approval of at least one of the five justices who struck down Section 4. Then, and only then, will we have Section 4 fully restored allowing Section 5 to do its job and provide pre-emptive protections for voters.
In the wake of the decision, House Majority Leader Eric Cantor made the statement cited in my opening. I believe this is the one issue that can achieve, again, bi-partisan support. IF the Supreme Court is right, then we will see Democrats and Republicans find a formula that ensures that the areas with the highest propensity for voter disenfranchisement are subject to review. Herein is the positive opportunity. Congress has the opportunity to actually expand the Voting Rights Act, if not in scope but in a targeted way that reaches areas outside the current (past) scope. What do I mean?
All of American learned in 2000 that certain counties in Florida have trouble counting ballots. Well America, we Floridians still can’t quite get voting right. The same counties that held up a nation in 2000 were STILL struggling to process votes in 2012—Broward, Miami-Dade and Palm Beach. Had a few other states gone for Romney, we would have had a repeat nightmare situation where the eyes of the world were on South Florida. I’m talking about the same South Florida that had to stay open past 2 AM for people to vote, even though the polls theoretically close at 7pm. Guess what? These counties are OUTSIDE the Preclearance requirement of the Voting Rights Act.
College students in Ohio, Wisconsin and the Northeast faced voting challenges. State legislatures passed laws in 2011 billed as fighting voter fraud but were meant to disenfranchise voters. There was enough time to mount challenges using Section 2. Stories like this abounded across the country. Many of these jurisdictions did not meet the Section 4 formula and thus were not subject to Preclearance. My point is that, theoretically, this is an opportunity to catch injustices that are otherwise missed.
Finally, this is an opportunity to expand our thinking about Preclearance. Yes, the Voting Rights Act was passed on the backs, blood, sweat, tears and lives of African Americans. But we were not alone. The legal fight for equality was a joint venture between African Americans and Latinos. NAACP lawyer and eventual Supreme Court Justice Thurgood Marshall studied Mendez v. Westminster, which set the legal precedent for Marshall’s most famous case Brown v Board of Education and he understood the implications of Hernandez v. Texas, which established that all Americans are subject to equal protections under the 14th Amendment. In fact, Lau v. Nichols, a case involving an Asian student, chipped away even further at discriminatory practices.
I believe there will be an attempt by Congress to keep Section 4 alive. It will be difficult to reach a consensus on what the formula will look like—I can see where any legislator whose district would be impacted by a new formula objecting—but there will be an attempt. While we wait on Congress to find a formula palpable to both Congress and the Supreme Court, there are three policies we can pursue that will protect the right to vote and protect the integrity of our electoral system.
1) Pass legislation requiring all Section 2 challenges to be decided by at least the state level Court of Appeals before an election is certified. If upheld, a new election must be held.
2) Federally fund all regularly scheduled elections. Elections are expensive for government. The federal government can heavily subsidize elections and tie the subsidies to specific policies, such as early voting periods.
3) Eliminate the formula altogether and make every jurisdiction subject to Preclearance. During the oral arguments, Chief Justice Roberts asked if the South is inherently more prejudiced than the non-South. The Court seemed to take issue with singling out specific areas for Preclearance. Take their point and run with it.

2013 is a year of landmarks. The first African American President of the United States was sworn in for his second term on Martin Luther King, Jr. Day. This is the 50th anniversary of the March on Washington for civil rights. This is the 45th anniversary of King’s assassination. Now, at least for now, 2013 is the year the Voting Rights Act changed forever. As with every turn in American history, activism, ingenuity and persistence will determine the future.

About the Author
Fred Hicks is a former Adjunct Professor at Florida A&M University and Instructor at George C. Wallace Community College. He is a proud graduate of Clayton State University, where he served as the first African American Student Government Association President and was named the 2010 Distinguished Alumnus. He holds a Master’s degree and graduate certificate in Education Policy, Planning and Analysis from Florida State University, where he also completed his doctoral coursework. Fredrick is the President of the Hicks Evaluation Group (HEG), a full service consulting firm. He can be reached by email at: fred@hegllc.org

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About Sweet Nothings

I went to college and majored and Mass Communications/Public Relations but decided to take my passion for promoting others to law school....where i could then learn to promote MYSELF! Kidding. Kind of. Now I'm a lawyer. 8 years later, big whoop and womp womp.
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