Old law questioned

Students gathered at the Marshall-Wythe School of Law Tuesday to hear about the struggle over a law widely considered to be outdated.

Hans von Spakovsky, former commissioner of the Federal Election Commission, spoke about Section five of the Voting Rights Act as part of the Election Law Society’s speaker series.

The VRA, passed in 1965, is seen as the principal piece of legislation regarding voting rights. Section 5 decrees that areas must submit voting regulation changes, from redistricting to polling locations, to the Justice Department for approval.

When the VRA was passed, some regions were trying to create legislation to prevent African Americans from voting. Under Section 5, submissions for voting change had to be sent to the federal government because small town judges were thought to be predjudiced.

“Section 5 is the largest intrusion into state sovereignty that we have [in our legislation],” von Spakovsky said. “The Supreme Court has historically upheld it, saying that it is justified because of extraordinary circumstances of systematic discrimination.”

However, von Spakovsky asserted that many factors make the section no longer applicable. The vast majority of states are on par with federal ratios for voters of different races.

“Since 1965, the Justice Department has gotten 11,000 submissions to approve preclearance,” von Spakovsky said. “The department has objected to less than 1 percent of the submissions.”

Section 5 puts the burden of proof on the entity submitting voting changes. It is also unusual because it covers only nine states and parts of seven other states.

Von Spakovsky described two recent court cases concerning with Section 5. One case was from Kinston, N.C., a town with a majority of African Americans, most of whom support the Democratic Party. In Nov. 2008, the town voted to make their elections nonpartisan.

“The Justice Department objected to the proposal,” von Spakovsky said. “They claimed that the elimination of party affiliation would not allow blacks to elect candidates of their choice, even though the town’s majority was black.”

Voters both black and white sued with the claim that section 5 was unconstitutional. In Dec. 2008, a judge ruled that only the town’s council had standing to sue.

In the second case, Shelby County, Ala. filed a suit claiming they had no history of discrimination, and that the application of Section 5 was therefore unconstitutional. In response, the Justice Department said it needed a “year of discovery” to confirm the claim, which the area’s judge did not accept. This case, Von Spakovsky claimed, likely will go to the Supreme Court.

Von Spakovsky predicted both cases to lose in the Supreme Court, but added that it is worth knowing about Section 5 and the possible changes and conflicts in its legislation.

This was von Spakovsky’s second time visiting the College. He said his interest in election law has lasted for some time.

“Twenty years ago, I was asked to help with a local election,” he said. “It kicked off my interest.”


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