In a recent column, Wall Street Journal editorial board member James Taranto seized on a tribute to lifelong civil rights activist Lawrence Guyot written by the progressive Constitutional Accountability Center as an opportunity to attack the Voting Rights Act of 1965. But Taranto's criticism of the most effective anti-discrimination law in history ignores ample relevant history and case law.
Guyot passed away on November 22 at the age of 73. As a civil rights worker in the 1960s, he was beaten, jailed, and tortured for the voting rights and anti-segregation advocacy he undertook on behalf of African-Americans in Mississippi. In their tribute to Guyot, CAC noted that while current voter suppression is nowhere as violent as the tactics Guyot suffered, if unchecked by the Voting Rights Act, their effects still present discriminatory voting obstacles.
In his November 29 column, Taranto used CAC's Guyot obituary to attack Section 5 of the VRA, which Congress and federal courts have consistently reauthorized and utilized as essential for protecting the voting rights of millions of citizens who aren't white. Taranto also criticized the absence of extensive legal analysis in the obituary, complaining that it instead had "adjectives and adverbs," and more than one use of the word "iconic."
For a pair who work for something called the Constitutional Accountability Center, [Doug] Kendall and [Emily] Phelps don't have a lot to say about the constitution. Their defense of Section 5 is purely sentimental, with lots of intensifying adjectives and adverbs. Shelby County v. Holder, they exclaim, is "a monumentally important challenge to a key part of the Voting Rights Act, the iconic law for which for which [sic] Mr. Guyot shed blood."
Taranto, who cites a map and the Supreme Court brief for the Alabama county challenging the constitutionality of the VRA, focuses solely on the obituary to accuse CAC of not discussing the Constitution more in their tribute to Guyot. Yet Taranto fails to mention the extensive legal analyses and legal briefs CAC has written on the constitutionality of the VRA, all easily accessible on their website, as well as in other news outlets.
It is true that that CAC used the word "iconic" four times. It is also true that Taranto managed to write an entire column on the inappropriateness of Section 5 of the Voting Rights Act without once using the words Jim Crow, and only referencing voter suppression in quotes. Discussion of these topics is crucial to any analysis of the VRA.
Throughout his column, Taranto questions why only certain areas must get approval for changes to their election practices under the VRA. The answer is simple: even with the passage of the Fourteenth and Fifteenth Amendments to the Constitution following the Civil War, states of the Old Confederacy in the South refused to recognize equal protection and voting rights for African-Americans, through Reconstruction to the late Jim Crow era. From the U.S. Commission on Civil Rights' 1971 introduction to the 1970 VRA amendments:
Despite these constitutional protections [of the Reconstruction amendments], blacks in the South were virtually disenfranchised from the end of the Reconstruction Period until 1965, and members of other minority groups have also frequently been denied the right to vote.
It was not until the passage of the Voting Rights Act of 1965, however, that this right was extended to black people in the South in a meaningful way.
As Congress discovered more evidence of discrimination against racial, ethnic, and national origin minorities, more geographic areas were added to the scope of the VRA's anti-discrimination protections. Evidence of this discrimination can be shown by disproportionate effects or basic logic, which is why one appellate court recently found evidence of the former in South Carolina, and another appellate court utilized the latter to explain that if the predominant number of "young,...elderly and poor voters" affected by voter suppression in Texas are racial minorities, the VRA applies.
The reason that non-Southern areas remain uncovered by Section 5 of the VRA despite recent evidence of similar voter suppression is also unexplained in Taranto's column. States uncovered by the VRA do indeed engage in the same discriminatory tactics that have been overwhelmingly rejected in the courts. The answer to this omission is not complicated: it was difficult enough to pass the 2006 reauthorization of the Voting Rights Act during a Republican presidency, and as evidenced by current Republican obstruction, updating the VRA to cover additional areas has become increasingly unlikely.
Taranto was correct that CAC's obituary of Guyot did not go into a detailed legal analysis of whether the reauthorization of the VRA in 2006 was appropriate. If he wants to see their legal analyses, however, he can read the briefs they have filed in the case or he could read any of the many blogs and articles they have written on the issue. From the CAC's Text & History:
To anyone who takes the Constitution's text seriously, there are glaring holes in the conservative constitutional attack on the Voting Rights Act. Shelby County's primary argument is that the Act's preclearance requirement is outdated and unnecessary, given changes in Alabama (where Shelby County is located) and elsewhere, but the Constitution, in fact, assigns to Congress the job of deciding how to enforce the Constitution's ban on racial discrimination in voting.
It is certainly true that the coverage formula relies on decades-old data that has less relevance today. But, as the D.C. Circuit concluded, the formula was always less important than the jurisdictions it covered. Going all the way back to 1965, "Congress identified the jurisdictions it sought to cover - those for which it had 'evidence of actual voting discrimination' - and then worked backward, reverse-engineering a formula to cover those jurisdictions." And, as the record described by Judge Bates and Judge Tatel in Shelby County shows, these jurisdictions continue to be the worst offenders, consistently refusing to live up to the Constitution's promise of a multi-racial democracy.