Voting Rights Act oversight rules should reflect today, not the past

If you listen to most of the mainstream media, you’ll believe that a decision Tuesday by the U.S. Supreme Court has just destroyed the voting rights of black Americans. MSNBC’s headline says, “Supreme Court guts landmark civil rights law.” Reuters headlined its story by saying, “Supreme Court guts key part of landmark Voting Rights Act.” Salon’s headline said, “SCOTUS guts Voting Rights Act.”

It’s almost as though some members of the media got together with black politicians and others on the progressive left to decide that “gut” was the most emotional verb possible to express their disapproval of the Supreme Court ruling.

If you don’t know much about the law or the history involved, you might think the court said it was now legal for states to discriminate against minorities and take away their right to vote.

Nothing of the sort happened. The spin against the ruling is dishonest. The truth is that the decision is a win for fairness. Let’s look at the reason why.

Let’s assume that the Voting Rights Act of 1965 was a proper remedy for the problems that existed when the law was passed. Up until then, blacks and other minorities had been seriously cheated for many decades by racist white governments in more than a dozen states, most of them in the South.

Those state and local governments had instituted rules to discourage or outright prevent blacks from registering to vote (or from actually voting). As a result, less than 20 percent of blacks were registered to vote, while somewhere around 65 or 70 percent of whites were registered. I don’t remember the specific numbers, but there was a very wide disparity — and it was by intentional design. Things such literacy tests and poll taxes were used because the elites who held power knew it would stop blacks from voting.

What went on was wrong. I don’t favor civil rights legislation to force private businesses to treat everyone the same way (or even to serve everyone), but any instance of governments treating people (or groups of people) in different ways is wrong. Government has no rational basis for discriminating against people based on race and various other categories.

The Voting Rights Act declared that governments had to treat groups of people the same way. The key enforcement mechanism was something called “pre-clearance,” which required state and local governments in 15 states to get approval of the U.S. Justice Department or a federal judge before they made any changes to anything related to elections. (Some states were covered much more than others. A few were covered only for certain counties, for instance.)

If you had a city council with five members and you wanted to change that to seven members, you had to have the federal government’s permission to make that change. If you wanted to change voting locations or polling hours or district lines, you had to have approval. Anything that was vaguely related to an election required approval from Washington.

Why were those 15 states (or parts of states) singled out? It was based on a formula that looked at discrimination in place for 1964. As the law has been renewed over the years, it has continued to be based on that same determination of what discrimination was like in 1964. So if your state, city or county had a pattern of discrimination prior to 1965, you were required to continue getting federal approval for any change you made — even if there was no evidence that your state, city or county was guilty of any kind of discrimination for decades since then.

Those who opposed ending the use of the 1965 pre-clearance rules say that it will somehow destroy minority voting rights. They frequently cite efforts to enact voter ID laws as examples of renewed discrimination. This has always confused me, because I’ve never been able to find anyone who can tell me how this is discriminatory against blacks or other minorities. If you want your money out of a bank, you need ID. If you want a driver’s license or passport or pretty much anything else in the world, you need an ID.

Why is it so onerous to insist that people be able to show they’re who they claim they are? It’s not especially difficult to get it. In most places, you just go to the office that issues driver’s licenses and get one made there. (Here’s how it’s handled in Alabama, for instance.) It’s especially galling to me since I’ve talked to people who were paid to go from one polling location to another to vote in different names in different places — which they can do since identification isn’t required.

A county just south of Birmingham sued over the law, saying that there was no rational basis for the county to be held responsible today for practices that were in place almost 50 years ago. In a 5-4 split ruling, the Supreme Court agreed that there was no rational basis to continue applying data from 1964 to governments today with no record of discrimination.

That’s all this ruling does. It says that pre-clearance can still be required, but there has to be a rational current basis for requiring that. If a state or county can be shown to be discriminating recently, pre-clearance rules are rational, the court ruled. But it’s not fair or reasonable to hold governments responsible today for what was done by racist politicians five decades ago or more.

The court said Congress is perfectly free to enact new rules based on a current determination of who is discriminating. So Congress still has that power — as long as it’s done fairly.

This ruling won’t prevent blacks from having the right to vote. It won’t prevent Congress from having the power to stop racial discrimination in voting. All it does is require the rules to be fair and rational. It requires that Congress enact rules that treat states, cities and counties equally — based on current reality.

It’s hard for me to see how a rational person could disagree with that — unless he thinks that people today are responsible for what other people did 50 years or more ago.