Fox News Doesn't Understand The Voting Rights Act, Reports On It Anyway

Fox News host Megyn Kelly began the network's substantive coverage of oral arguments in Shelby County v. Holder, the current Voting Rights Act case before the Supreme Court, by incorrectly reporting the reach of the Voting Rights Act as limited to select states, while also appearing entirely unaware that this historic law has prevented voter suppression against limited-English proficient speakers since 1975.

On the February 27 edition of America Live, Kelly hosted a segment on the constitutional challenge to Section 5 of the Voting Rights Act, the provision that requires certain jurisdictions with histories of racial discrimination to federally “pre-clear” election changes prior to enactment, reminding viewers it's the “biggest civil rights case in decades.” However, both Kelly and Fox News reporter Shannon Bream neglected to inform viewers that the constitutional challenge is only to the “pre-clearance” provision and repeatedly reported the Voting Rights Act as limited to those Section 5-covered jurisdictions. Fox also ran a map of those states covered by Section 5 (mistakenly labeled as “Covered By Voting Act Entirely”) and Kelly asked “Alaska? Is that right?”

Section 5 may indeed be the heart of the Voting Rights Act, designed to focus on the worst actors, but the seminal civil rights law covers the entire country. America Live's misleading conflation of Section 5 with the entirety of the Voting Rights Act might have been considered a shorthand, if it wasn't for Kelly's total befuddlement at the inclusion of the state of Alaska on her map cheat sheet. Instead, it appears Fox News doesn't know how the Voting Rights Act works.

Congress determined early on that the Voting Rights Act was incomplete unless it ensured that those individuals with limited English proficiency were also guaranteed equal access to the right to vote. Accordingly, it adopted “language minority” provisions in 1975, which required Alaska (along with Arizona and Texas), to begin pre-clearing its election changes, pursuant to Section 5, in light of its record of discrimination against "American Indians, Asian Americans, Alaskan Natives, [or] Spanish-heritage citizens - the groups that Congress found to have faced barriers in the political process." This impermissible voter suppression unfortunately still continues, and Congress relied on this documented fact to reauthorize Section 5 in 2006. As described by a Shelby amicus brief submitted by national Latino organizations whose constituents are protected from both race and language discrimination under Section 5:

Finally, the covered jurisdictions continued to erect language-based barriers by targeting discrimination against Latino citizens who are limited-English proficient. Congress heard evidence of “strategic efforts” in Texas to exclude Spanish-speaking citizens from registering in 2004 by refusing to deputize Spanish-speaking registrars. Similarly, there was evidence that officials knowingly gave Latino voters flawed Spanish-language balloting materials.

As recounted in other Shelby amicus briefs, during the 2006 reauthorization, Congress found similar voter suppression on the basis of language was also used against Asian-Americans, Alaskan Natives, and American Indian voters.

Kelly additionally managed to incorrectly describe the state of Virginia as one of nine states “entirely” covered by Section 5 (while incorrectly continuing to describe this group as the collection of states subject to the entire law). In fact, Virginia is an example of Section 5's flexibility and is only partially covered. Under the “bail-out” provision of the Voting Rights Act, over 100 jurisdictions in Virginia have been able to prove their compliance with the law and remove themselves from Section 5 coverage. If Shelby County could stop impermissibly discriminating against voters on the basis of race, it too could avail itself of the “bail-out” process. Instead, this Alabama county is seeking to strike down Section 5 not only as applied to itself, but for all covered states. As reported by NPR:

One of the most persistent arguments made by those who want to see Section 5 go away is that states are unfairly compelled to remain on the federal list because of outdated formulas contained in the original 1965 act, and not based on current evidence of discrimination.

They also argue that bailing out, which requires proof of a decade of nondiscrimination in elections and voting, is complicated and prohibitively expensive.

Hogwash, says [former Deputy Chief of the Voting Section of the Department of Justice Gerald] Hebert, who notes that since 2009, when the Supreme Court made bailing out easier, nearly 130 jurisdictions (though no states) have successfully been released from the federal list.

An additional 69 jurisdictions successfully bailed out between 1982 -- when Congress amended the Voting Rights Act to include new bailout standards for local governments -- and 2009.

More than 100 Virginia jurisdictions, including 24 counties and seven independent cities, have successfully bailed out of federal pre-clearance.

The costs of the process, which is largely paperwork, Hebert says, rarely exceed $5,000.

“It's affordable and cost-effective, it's administratively feasible and readily achievable,” says Hebert, a former longtime Justice Department voting rights official who has argued as much in an amicus brief filed with the Supreme Court. “Bailout is not illusory; it's actually workable.”

The 1965 act, he argues, is not frozen in time, as its critics argue.

Kelly concluded the segment by promising they will continue to “track the progress of the case.” Hopefully, they will read up on it as well.