At the moment, there is only one thing that holds any state accountable for its election practices, only one check on the ability of states to disenfranchise large segments of their population and discriminate indiscriminately. In Shelby County v. Holder, the Supreme Court seems ready to threaten this check, the Voting Rights Act, and to throw back to the states federal elections and with it endanger any hope of fairness whatsoever in an already beleaguered electoral system.
In September I wrote, regarding the Pennsylvania Voter ID law, that vesting control of elections with state governments was bad policy. This has been clearly demonstrated by the prevalence of gerrymandering and unfair election practices in such states as Pennsylvania and Ohio and the relative lack of such practices under the law in the South. The reason here seems to be Section 5 of the Voting Rights Act, which requires certain jurisdictions, primarily in the South, to clear any changes to their election laws with the Department of Justice. While this has not always been perfectly implemented, it has done a great deal to reduce institutional issues with the electoral process and reduce discrimination.
Unfortunately, the tides may be turning on Section 5, as the Supreme Court may well vote to strike it down as unconstitutional. That would be a mistake. The problem with our elections is not too much federal intervention, it’s too little.
Why should the federal government not have the right to decide how its own officers are elected, or at least to decide whether state laws are unreasonable? It seems reasonable that elections should be decided at the level of government to which they apply, local elections by localities, state elections by the state, and federal elections by the federal government. The current system allows parties to influence Congress not through congressional elections, but through state legislatures. By focusing resources there, they can pack the houses and create gerrymandered districts that cement their majority at both the state and federal levels. Such has been the case under Democrats and Republicans both.
Bringing election law up to the federal level would shine a light in an otherwise opaque system. It seems inconceivable that systematized discrimination and disenfranchisement could be supported at the federal level in the same way that it is at the state level. There is much more attention paid to the federal government by each branch at the others and by the media. It is far easier to find out what is going on in Congress than in state legislatures, as there is always someone from the opposition yelling on TV. Have Congress create a standard system of election to be implemented across the country, and the issue would no longer be at all hidden from the public view; there would be vigorous public debate.
Partisan politics at the federal level is frequently a roadblock to progress, but it also ensures that issues are brought to light. A vocal opposition with a national pulpit prevents the majority from ramrodding legislation without oversight. This level of opposition is not shared in state legislatures, think Massachusetts or Utah, nor does any assemblyman have the same access to the public forum as does a member of Congress. By putting partisanship to work, by taking this issue from states and giving it to the federal government, we can ensure a more transparent and, hopefully, fairer process.
The Supreme Court may disagree with me here. I acknowledge that their job is to interpret the law as it is, not to find the best policy .If they decide to uphold the law, I would hope that we can move to extend the act to the entire country, and give Congress the power to standardize federal elections nationally. If the law is struck down, then election law may well be set back decades. The law that forced an end to voter discrimination and rolled back Jim Crow laws would lose one of its most powerful tools, in a way which seems to prevent any meaningful way of enforcing anti-discrimination laws.
For anti-discrimination legislation to be successful, there must be a way to enforce it, and that is exactly what Section 5 does. I say we take it a step further and acknowledge that there is discrimination everywhere, not just in the South. It shouldn’t matter where one votes, the process should be the same, and eligibility should be subject to the same rules everywhere. None of this is new, this is just democracy. We should protect our democracy, not hide its process and lessen the ability of the government to fight discrimination and corruption. The Voting Rights Act does not overstep, indeed it does not go far enough, but it is a start, a job left that we should work to complete.