A Modest Proposal on Voting Rights

In light of the Supreme Court’s decision on the Voting Rights Act, upholding the principle that States must be treated equally under the Constitution when it comes to new voting legislation they enact, but people, in relation to their exercising their voting rights, not so much; there’s a real need for proposals to make Section 5 of the Voting Rights Act operative again by re-writing Section 4. Here’s a modest proposal.

I call on Congress to reconstruct Section 4 to require that all States must submit new legislation changing voting their voting rules to the Justice Department for pre-clearance. My proposal has the following great advantages.

First, it can be drafted in a single page bill that everyone can understand.

Second, it would prevent the clearly discriminatory voting legislation recently passed, or currently being proposed in many American States.

Third, it treats all the States absolutely equally, while having the likely long-term impact that equality for individuals across States in voting will be increased.

Fourth, it complies very well with the Supreme Court’s latest reasoning about Sections 4 and Section 5 of the Voting Rights Act.

Fifth, it can’t pass the Senate without getting rid of the filibuster; so it places further pressure on Harry Reid to get rid of that noxious anti-democratic practice.

Sixth, this is legislation that people can really believe in and get behind; so politicians who advocate for it will be on the right side of popular sentiment and the advance of democracy.

Seventh, if the Congress sits on the proposal and fails to pass it, then this can be a compelling issue for the campaign of 2014, providing a great basis to mobilize people to come to the polls to elect people committed to saving our democracy.

Let’s get behind this, immediately, and let’s not take any hostages, or allow any compromises, Let’s get complete voting rights equality for everyone, no matter where they live in the United States.

(Cross-posted from New Economic Perspectives.)

14 responses to “A Modest Proposal on Voting Rights

  1. Sunflowerbio

    As usual, Joe, you are ahead of the curve. This needs to be done as voter suppression is gaining traction in many states. It’s either that or we revert to the original electorate of free, white males who own property, preferably lots of property.

    • Joe Firestone

      I think that’s what this Court wants to do. They are the most plutocratic Supreme Court we have had since the days of “the Four Horsemen,” Justices McReynolds, Sutherland, Van Devanter, and Butler, in the 1930s. Maybe we need a little Court packing, or a few impeachments to reform this radical Court.

  2. golfer1john

    I’m no lawyer, but I don’t think it would fly. The decision says

    “Indeed, the Tenth Amendment reserves to the States all powers not specifically granted to the Federal
    Government, including “the power to regulate elections.””


    “The Voting Rights Act sharply departs from these basic principles. It requires States to beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own”

    Your proposal would violate both of these findings.

    However, the decision also says

    “State legislation may not contravene federal law”

    So that if the Congress finds certain provisions of voting laws in certain states to be objectionable, it may simply prohibit those provisions. It has done so in the case of poll taxes, for instance. If Congress also feels that requiring aspiring voters to submit evidence of their identity or eligibility to vote is objectionable, then it may simply ban those provisions as it has banned poll taxes.

  3. I concur.
    But I was expecting a Jonathon Swift styled ‘Modest Proposal.’ Was there satire here that I missed?

  4. Joe Firestone

    I’m not a lawyer either, but I am a Ph.D. political scientist who studied some Constitutional Law. And I also know that while some lawyers and judges will take the position you’re taking; others will not because the 14th Amendment constrains the States in many ways. The basic idea here is that the Court has approved section 5, so we know that the Congress can provide authority to the Department of Justice for pre-clearances of legislation regulating voting. With respect to section 4 the Court requires a that Congress legislate a new plan. I don’t see anything in the law pr the Constitution that would prevent Congress from specifying a plan that requires all States to go through pre-clearance. Certainly the Court hasn’t said that such a “new map” would be unconstitutional. So my view is that you pass this as quickly as you can to delay the inevitable flood of anti-voting laws in Republican controlled states. Then while the conservatives are contesting that, you work to pass a Constitutional Amendment requiring pre-clearance permanently.

    • golfer1john

      Perhaps another court would do what you’d like, or even this one if circumstances changed and there were adverse effects on some group similar to the adverse effects on blacks in the “covered jurisdictions”. But what the court said about section 5 is

      “Section 5 of the Act required States to obtain federal permission before enacting any law related to voting—a drastic departure from basic principles of federalism.”

      and that it was justified only because of the extraordinary circumstances surrounding black voters in the South for 100 years. And section 2 already provides for, and has been used to exercise injunctive relief against voting laws in any of the states, if they violate Federal law, or the 14th or 15th amendments. So I don’t think that the evil rednecks will be able to do any damage even if there is no preclearance.

      • Joe Firestone

        They’ve already done damage. They just passed a VRA in Texas that will surely have the effect of restricting black voting. But, apart from that, the Court did not declare section 5 unconstitutional. Why not? Probably because on of the five, maybe Kennedy didn’t want to do that. So, as long as they haven’t section 5 is still constitutional, and a law passed to apply section 5 to all states would be prima facie constitutional until the Court says otherwise. So, I say throw it at them and see if it sticks.

        • But Section 5 was allowed only because of exceptional circumstances in the covered jurisdictions. Surely you’re not saying that such exceptional circumstance exist in all 50 states?

          • And if the Texas law does have a racially disparate impact, it is still illegal under section 2, and would be illegal even if Texas were not one of the states covered by section 4.

            What Texas should do is provide a voter ID for free to people who don’t have drivers licenses or passports, if they are US citizens.

  5. Pingback: A Modest Proposal on Voting Rights | Fifth Estate

  6. Just remember, while today’s Justice Dept. might rule as you like, a future Justice Dept. might start ruling the other way if controlled by different politicians.

  7. This is a great idea. It’s not just covered jurisdictions where there’s racially motivated voter suppression. For instance, Rhode Island, where I live, just tried to ram through a tightening of its voter ID law. They didn’t let the Judiciary committee see the bill (which started as a repeal bill) until the second before they voted on it, so they thought they were voting for a freeze of the law’s harsher provisions. It died when the Latino legislator who sponsored it withdrew the legislation.