How Many Federal Workers Does It Take To Fix An Election?
The Tenth Amendment to the US Constitution banned federal involvement in elections.
Then the 14th Amendment saw States give that up if the feds were fighting racism against African Americans. It’s a vague amendment (my favorite part is “the validity of the public debt of the United States shall not be questioned”) and one of the most litigated Constitutional points.
So, in 1965 Congress passed the Voting Rights Act (VRA). It is most famous for requiring gerrymandering to create the highest number possible of elected offices with a 50% + 1 African American voting population. Its children include congressional districts back east two miles wide and 75 miles long.
Additionally, the VRA created and applied a test for racially discriminatory election practices. States that failed the test have had to get federal permission for elections or changes to election law ever since. In practice, these federal overseers have controlled policy details like requiring ballots in Spanish, expanded voter registration programs and a host of details historically left to states. The extra regulations cost the impacted counties and states millions of dollars of compliance expenses.
Money is the root of most litigation, even for government, so counties in the impacted states quickly had their Constitutional complaints before the Supreme Court but lost.
Over the decades, Congress changed the rules, pulling in more jurisdictions… going farther and farther afield with more and more rules. Each time, the locals filed new suits for Constitutional autonomy. Each time, the Supreme Court upheld the federal overseers – but going back to the first time SCOTUS upheld the VRA, the Court noted its unconstitutionality:
We recognized that it “may have been an uncommon exercise of congressional power,” but concluded that “legislative measures not otherwise appropriate” could be justified by “exceptional conditions.” In 1966, we found these departures from the basic features of our system of government justified. The “blight of racial discrimination in voting” had “infected the electoral process in parts of our country for nearly a century.”
In 2013, The Supreme Court decided Shelby County v. Holder. It’s a fairly short read, but it concludes that the Voting Rights Act has been successful:
The Act has proved immensely successful at redressing racial discrimination and integrating the voting process. During the “Freedom Summer” of 1964, in Philadelphia, Mississippi, three men were murdered while working in the area to register African-American voters. On “Bloody Sunday” in 1965, in Selma, Alabama, police beat and used tear gas against hundreds marching in support of African-American enfranchisement. Today both of those towns are governed by African-American mayors. Problems remain in these States and others, but there is no denying that, due to the Voting Rights Act, our Nation has made great strides.
However, rather than strike down the act altogether, the Shelby decision focused on whether the test (in Section 4(b)) that subjected a county to the shotgun wedding with federal election employees was Constitutional.
Striking down an Act of Congress “is the gravest and most delicate duty that this Court is called on to perform.” We do not do so lightly. That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional.
0bama’s administration appealed but lost, so that’s the law of the land. Congress should either press the issue and write a new test to capture counties it wants to control, or it should repeal sections four and five of the VRA. Perhaps, instead, Congress will do nothing. LW