Similar election-rigging schemes have been proposed in Florida, Michigan, Ohio, Pennsylvania and Wisconsin — all swing states controlled by Republican governors and state legislatures that Obama carried in November. According to political scientist Alan I. Abramowitz, had this scheme been used in those five states plus Virginia in 2012, “instead of Obama winning all of their 106 electoral votes, it appears that Romney would have won 61 electoral votes to only 45 for Obama.” That would have shaved Obama’s 332-206 electoral-vote margin to a razor-thin 271-267.
Back to Section 5 of the Voting Rights Act, which was designed to prevent just the sort of tomfoolery now taking place in Virginia: It requires nine Southern states and some parts of other states with long histories of discriminating against minority voters to get approval from either the Justice Department or a three-judge panel in Washington, D.C., before making any changes in their electoral procedures. They have to prove that changes — from as small as moving a polling place to as large as a new redistricting plan — will not make minority voters worse off.
Over the years, Section 5 has been used to nullify all sorts of nefarious attempts to water down the power of minority votes. Most recently it was used to overturn a host of rigid voter-ID laws designed to suppress the minority vote last November. Attorney General Eric Holder calls it “our nation’s most important civil rights statute.”
Obviously it’s still very much needed. But there’s a good chance that the right-wing bloc on the Supreme Court will strike down the provision this summer, when it rules in the case of Shelby County v. Holder.
Here again, it gets complicated. One of the key arguments made by opponents of Section 5 is that it is based on outmoded historical data that go back to the days of legal segregation and it allows jurisdictions not under its sway to get away with much worse electoral practices than are permitted in jurisdictions where the law still applies.
They have a point. Though Section 5 could be used to stop dead in their tracks the revolting modifications being considered in Virginia, it can do nothing to halt the equally repulsive new procedures in states where the provision does not apply. Kansas, for example, is free to enact tough voter-ID laws that are not permissible in Texas.
But that’s really more an argument for why we need to do a better job protecting the rights of voters in states like Kansas than it is for making it harder to protect the rights of voters in states like Virginia. We still need Section 5 and the rest of the Voting Rights Act.
The U.S. has come a long, long way since the days when blacks were denied the vote and, as a consequence, relegated to second-class citizenship. But as the retrograde maneuvering in Virginia’s legislature makes clear, we still have a long way to go.
Jack White, a former columnist for Time magazine, is a freelance writer in Richmond, Va., and a contributing editor for The Root.