Will falsely claimed 2006 extension of Voting Rights Act "was based on the evidence used for the 1975 extension"

In his January 18 Washington Post column, headlined "Voting Rights Anachronism," George F. Will falsely claimed that the 25-year extension in 2006 of Section 5 of the Voting Rights Act (VRA) of 1965 "was based on the evidence used for the 1975 extension -- that of the 1972 and some earlier presidential elections." However, as the U.S. District Court for the District of Columbia stated in a May 2008 ruling, before extending the VRA in 2006, Congress "held extensive hearings and compiled a massive legislative record documenting contemporary racial discrimination in covered states" [emphasis added]. Indeed, as their committee reports make clear, the House and Senate Judiciary Committees examined evidence of discrimination since 1982 -- the year of the last major reauthorization -- in extending the VRA.

Section 5 of the VRA requires certain jurisdictions -- including several states -- to "preclear" changes in voting procedures with the Justice Department or with the D.C. District Court before implementing such changes.

In its May 2008 ruling on Northwest Austin Municipal Utility District Number One v. Mukasey -- the case Will discussed and which will be argued before the Supreme Court -- the D.C. District Court stated that "given the extensive legislative record documenting contemporary racial discrimination in voting in covered jurisdictions, Congress's decision to extend section 5 [of the VRA] for another twenty-five years was rational and therefore constitutional." The court also noted that "[o]ne of the comprehensive reports Congress requested and relied heavily upon came from the National Commission on the Voting Rights Act. ... The Commission held ten hearings around the country, heard testimony from more than one hundred witnesses, and compiled a record of several thousand pages." The Commission's final report, titled "Protecting Minority Voters: The Voting Rights Act at Work, 1982-2005," examined "whether serious and widespread vote discrimination has continued since the Act's last major reauthorization in 1982."

A May 2006 report by the House Committee on the Judiciary, submitted by Rep. James Sensenbrenner (R-WI), found that "vestiges of discrimination in voting continue to exist as demonstrated by second generation barriers constructed to prevent minority voters from fully participating in the electoral process." The report stated that during oversight hearings, the committee examined evidence of the VRA's effectiveness "over the last 25 years" and "assembled over 12,000 pages of testimony, documentary evidence and appendices from over 60 groups and individuals, including several Members of Congress." From the report:

Prior to introducing H.R. 9, the House Committee on the Judiciary held ten oversight hearings before the Subcommittee on the Constitution examining the effectiveness of the temporary provisions of the VRA over the last 25 years. During these oversight hearings, the Subcommittee heard oral testimony from 39 witnesses, including State and local elected officials, scholars, attorneys, and other representatives from the voting and civil rights community. The Committee also received additional written testimony from the Department of Justice, other interested governmental and non-governmental organizations (NGOs), and private citizens. In all, the Committee assembled over 12,000 pages of testimony, documentary evidence and appendices from over 60 groups and individuals, including several Members of Congress.

The report later stated in its findings section that the evidence "over the last 25 years" supported the reauthorization of the VRA's "temporary provisions" (including Section 5) as "both justified and necessary." From the report:

The Committee hearing record reflects the breadth of interests represented during the hearings and provides the Committee with insight into the voting experiences of minority citizens over the last 25 years. The direct testimony provided by the witnesses, together with the investigative reports submitted, support the Committee's conclusion that the gains made under the VRA are the direct result of the VRA's temporary provisions, and that reauthorization of these provisions is both justified and necessary.

The report stated of Section 5 of the VRA that evidence since 1982 demonstrated that "attempts to discriminate persist and evolve." From the report:

Section 5, which requires jurisdictions covered by the temporary provisions to preclear all voting changes before they may be enforced, ensures that such voting changes do not discriminate against minority voters, and has been an effective shield against new efforts employed by covered jurisdictions. The Department of Justice reported that roughly between 4,000 and 6,000 submissions have been received annually from jurisdictions covered by the VRA. Since 1982, the Department objected to more than 700 voting changes that have been determined to be discriminatory, preventing such changes from being enforced by covered jurisdictions. The Committee received testimony revealing that more Section 5 objections were lodged between 1982 and 2004 than were interposed between 1965 and 1982 and that such objections did not encompass minor inadvertent changes. The changes sought by covered jurisdictions were calculated decisions to keep minority voters from fully participating in the political process. This increased activity shows that attempts to discriminate persist and evolve, such that Section 5 is still needed to protect minority voters in the future.

Like the House's May 2006 report, the Senate Committee on the Judiciary's July 2006 report also examined data and cases since 1982, in supporting the VRA's reauthorization.

From Will's January 18 Washington Post column:

That year, because they had used many tactics to suppress voting by blacks, six states and some jurisdictions in other states were required to seek permission -- "pre-clearance" -- from the Justice Department for even minor changes in voting procedures. In 1975, the act was extended to cover Texas and two other states. The act's "bailout" provision, which ostensibly provides a path by which jurisdictions can end federal supervision, is so burdensome as to be often unusable. The pre-clearance requirements, which were originally intended to exist for five years, have been extended four times, most recently in 2006 -- for 25 years. The Senate voted the extension to 2031 unanimously, which is evidence that genuflection had replaced reflection.

Now, however, a Texas utility district that did not exist until 1986 and that has never had a voting-related complaint says that the bailout provision has been virtually nullified by judicial interpretations. It further argues that the pre-clearance requirement -- arguably the most intrusive law abridging states' sovereignty -- was a response to a vanished emergency and is, after 44 years of racial progress, an indefensible violation of the Constitution's federal structure. The district argues that it "consigns broad swaths of the nation to apparently perpetual federal receivership" based on absurdly out-of-date evidence.

In 1966, the Supreme Court said the pre-clearance requirement was a "rational" response to that era's crisis. In 1997, however, the court held that, to be justified, such an infringement of states' self-government must demonstrate "congruence and proportionality" concerning the problem it addresses. The 25-year extension in 2006, which the Texas jurisdiction challenges, is incongruent and disproportionate because it was based on the evidence used for the 1975 extension -- that of the 1972 and some earlier presidential elections. So the 2006 renewal is itself evidence that there are no contemporary findings of unconstitutional behavior proportional to the Voting Rights Act's sweeping 1965 remedy. In 2031, which will be 59 years after the 1972 election, Congress probably will reflexively extend this receivership -- unless the court insists upon the pertinence of evidence.