Robert F. Jakubowicz: No case for election law changes



‘Republicans want local control over elections so they can come up with a new set of registration laws and control the vote," exclaimed an incredulous Ed Schultz of MSNBC last week while discussing the Shelby County, Alabama case that challenges the constitutionality of the Voting Rights Act. Schultz, and many Democrats who share this view, will be surprised to learn that the founding fathers actually left the method of holding elections mainly to the states with little congressional oversight. And therein lies the constitutional problem of federal regulation of elections.

The Supreme Court in a 1966 decision upheld the Voting Rights Act essentially as a one-of-a-kind federal law to remedy the then persistent problem of racial discrimination in voting in a small number of states that required an immediate remedy. Under this federal act, state election laws are made subject to preclearance by the Attorney General without any prior court adjudication regarding voting discrimination.


Traditionally such prior court action was expected to first determine if such discrimination existed before any federal action was taken to deal with it.

Under the Constitution, as drafted in 1787; the presidential electors are chosen as directed by state legislatures which initially also chose senators until a 1913 constitutional Amendment, and representatives and senators are elected at "times, places, and manner of holding elections" as "prescribed" by state legislatures subject to limited federal oversight. Under this electoral system, states have passed a hodgepodge of election laws.

Americans have since have applied patches to this system by way of constitutional changes to remedy some of the electoral abuses that resulted under some of the state laws. But none of these constitutional amendments put the federal government in charge of elections. Rather, they were few and limited prohibitions against states laws and practices that denied the right to vote based on "race, color, or previous servitude," sex," a "failure to pay any poll tax," or "age."

These changes to the election process only added more patches to the patchwork system of state election laws. One of these changes, a 1870 Amendment banning state laws denying the right to vote based on race and color, led to the current constitutional challenge of the Voting Rights Act before the Supreme Court.

After the Civil War, most of the Southern states passed laws designed to suppress voting by the newly freed slaves by allowing unfair literacy tests and tax payments as requirements for voting. This racial discrimination continued for almost a century until the mid-1960s because of limited and ineffective enforcement by the federal government. Finally, the public outcry by the civil rights movement and the bloody reaction to it by Southern states, including the murder of three civil rights workers in Mississippi and the violent attack by police on the peaceful civil rights marchers in Selma, Alabama, caused President Lyndon Johnson to take action.

LBJ appeared before a joint session of Congress in 1965 and called for a strong federal voting rights law to remedy the problem of voting discrimination. The result was the Voting Rights Act of 1965. This was a unique federal law. It created a statistical formula based on then voting and census records to identify the states and political subdivisions that were engaging in such voting rights discrimination based on race. The initial group of states included Alabama, Alaska, Louisiana, Mississippi, South Carolina, and Virginia as well as counties in Arizona, Hawaii, Idaho and North Caroline. These states and counties then automatically became subject for five years for preclearance of their election laws by the Attorney General or a federal court in the District of Columbia.

This preclearance of state voting laws has been extended four times by Congress, in 1970 for another five years (based on 1968 voting records), in 1975 for seven years (based on 1972 voting records and adding the state of Texas, and the entire state of Arizona and parts of six other states), in 1982 for 25 years (with a new enforcement formula), and in 2006 for an additional 25 years under President George W. Bush's administration and a Senate vote of 98 to 0 and a House vote of 390 to 33.


In the 1980s, a young lawyer in President Reagan's Justice Department, John Roberts, the current chief justice of the Supreme Court, reportedly had the job of curtailing the effectiveness of the Voting Rights Act of 1965. Later in a 2009 Supreme Court case, Roberts, as chief justice, wrote the majority opinion resolving that case by avoiding the constitutional validity of the law. But, he stated in that opinion that the "exceptional conditions" in Southern states over voting in the 1960s that justified the "extraordinary legislation" of the Voting Rights Act, "unfamiliar to the federal system, no longer existed because of the success of that Act." This change, he wrote, in effect presents a difficult constitutional question whether there still is adequate justification for such preemptive clearance of state elections laws by the attorney general.

Judging by Pennsylvania's Republican House Majority Leader Mike Turzai's comment last year on the passage of a state law calling for "Voter ID, which is gonna' allow Governor Romney to win the state," I strongly disagree with Roberts prejudgment of the Shelby County case that there is a lack of justification for the preclearance of state election laws today.

Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.


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