Erwin Chemerinsky and Rick Hasen of UCI Law Weigh in Far and Wide on Voting Rights Act
One of Chemerinsky's seven books (publish or perish!) is The Conservative Assault On the Constitution (2010), and he and fellow election-law expert Rick Hasen fear conservative Chief Justice John Roberts' assault on Section 5 of the Voting Rights Act through the case currently before the court, Shelby County v. Holder.
The Voting Rights Act of 1965 outlawed discriminatory practices that, in particular, disenfranchised African-American voters. Signed by President Lyndon Johnson and considered an extension of landmark civil-rights legislation, the Voting Rights Act targeted Southern states that imposed prerequisites or qualifications for voters. Congress has extended it numerous times since its passing, generally in five-, seven- and even 25-year increments.
Section 5 requires certain states and counties to get "preclearance" for voting requirements from the Department of Justice or a three-judge panel of the U.S. District Court for the District of Columbia, which must ensure the proposed steps do not discriminate based on race, color or minority language. Another section being challenged sets out a formula for identifying jurisdictions that fall under the rule.
Some have complained requiring preclearance in some but not all (or no) jurisdiction is unfair. Others have blasted the law for--they believe unlawfully--creating multilingual ballots and racially gerrymandered voting districts. But the biggest complaint currently before the Supremes is the Voting Rights Act is unnecessary because the racial prejudice in 1965 America has nearly disappeared.
Reacting to a conservative Voting Rights Act opponent who made his case in the Wall Street Journal, the progressive Media Matters for America pointed to the following from Chemerinsky:
It always is tempting to declare that our society is post-racial and that racism is over. In 1883, less than two decades after the Civil War, the Supreme Court in the Civil Rights Cases declared unconstitutional the Civil Rights Act of 1875 and said that "[w]hen a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws."
Now challengers to Section 5 of the Voting Rights Act are arguing that the law is no longer needed because race discrimination in voting is largely a thing of the past. That is simply wrong, and the Supreme Court should defer to the nearly unanimous judgment of Congress that this law remains an essential weapon in the fight against race discrimination in voting.