Legal News

Reprising the ?Preclearance? Issue: The NYer?s Jeff Toobin Weighs In

By Ashby Jones

Getty Images

President Lyndon B Johnson discusses the Voting Rights Act with civil rights campaigner Martin Luther King Jr. The act, part of President Johnson’s ‘Great Society’ program trebled the number of black voters in the south. (Photo by Hulton Archive/Getty Images)

Last month, we blogged on a case that the Supreme Court recently agreed to hear: Northwest Austin Municipal Utility District v. Mukasey. If the votes go a certain way, the Court could shoot down Section 5 of the Voting Rights Act of 1965. Section 5 is the “preclearance” section, which requires nine stats and several smaller jurisdictions throughout the country to receive approval from the Justice Department before making changes to their voting procedures.

The New Yorker’s Jeffrey Toobin weighs in on the case in this week’s issue. Toobin’s a bit afraid by what the Court might do, writing that “in a case to be argued before the Court this spring, the current conservative majority has a chance to undo this signal achievement of American democracy.”

In the case, the plaintiffs — several covered jurisdictions — argue that the preclearance provision should be found unconstitutional “because Congress ‘irrationally and incongruously’ chose to continue imposing ‘disproportionate’ burdens . . . on covered jurisdictions on the basis of an ‘ancient formula’ and ‘conditions that existed thirty or more years ago but have long since been remedied.’”

Toobin writes that the plaintiffs’ rationale for why the country no longer needs Section 5 — the victory of Barack Obama in November — is mostly bogus. “Barack Obama won the Presidency,” Toobin writes, “but voting patterns in the Deep South suggest that race remains a major factor in American political life.”

What recent electoral history shows is that voting requires broader, not narrower, protection. In many parts of the country, the voting rights of poor and minority citizens are treated with not so benign neglect. In the 2000 election, African-American voters in Florida suffered disproportionately from that state’s shoddy practices, such as inadequately maintained registration lists and inferior technology; in 2004, many minority voters in Ohio endured long lines waiting for balky, and too few, voting machines. Across the nation, laws that remove the franchise from those with criminal convictions hit minorities especially hard. . . . But neither Florida nor Ohio is a covered jurisdiction under Section 5, and the act is not written to address new techniques of suppression. . . . Viewing Obama’s election as an opportunity to tidy up the nation’s historical accounts is tempting but ultimately wrong.

LB Readers, we’d love to hear how you feel on this issue.

Full post as published by Law Blog - WSJ.com on February 23, 2009 (boomark / email).