Above and beyond on the Voting Rights Act

Less than a month after the Supreme Court’s decision to overturn Section 4 of the Voting Rights Act, the Senate Judiciary Committee discussed restoring the protections.

“I was particularly disappointed with the statement in the oral arguments that Congress passed the Voting Rights Act only because it had a nice name,” Minnesota Sen. Al Franken said.

The high court’s decision, which said the 1965 legislation was no longer relevant to modern society and tossed out the formula determining federal oversight, provoked an outcry from civil rights advocates. But beyond that obvious backlash, the ruling has stirred a more groundbreaking debate in California, posing the question: If 20th century civil rights protections aren’t applicable in the 21st century, what laws are?

“We can try to consider going above and beyond on our own without having to be dictated by either the Supreme Court or Congress” said Sen. Alex Padilla, D-Pacoima, who is running for secretary of state in 2014.

“It was not the very best way for the United States to demonstrate how strongly we want everyone to participate in this democratic process,” said Sen. Leland Yee, D-San Francisco, who is also running for secretary of state. “What it means particularly in the state of California is that all of us have to redouble our efforts to ensure that there will be no measures enacted in the state of California that are going to impede and discourage anybody from participating in this democratic process.”

It wouldn’t be the first time California took the initiative to address equality and civil liberties in the dynamic and changing demographics that define the state. In 2002, then-Gov. Gray Davis signed the California Voting Rights Act into law, which extended the federal provisions to facilitate litigation in cases where racially polarized voting in at-large elections put minorities at a disadvantage.

But in California, voting rights go far beyond simply whether a group is a minority or a majority. Latinos, who have faced historic discrimination and disadvantages, may be California’s largest ethnic group as early as next year. Despite these demographic shifts, however, Latinos remain proportionally underrepresented in the electorate. According to data from UC Davis’ Center for Regional Change, the rate of voter registration for Latinos was about 10 percent lower than that of the general population in 2010.

On its face, this seems like a fundamental racial issue, similar to that which the 1965 Voting Rights Act addressed in the south but applying in California to a different ethnic group.

Yet the nature of this disenfranchisement is far more complex, encompassing not just ethnicity but the pocketbook, too.

“There is a very real bias of some election laws and policies that are being considered in some states against people with lower socioeconomic status,” said Erin Hustings Senior Policy Analyst for the National Association of Latino Elected and Appointed Officials (NALEO) Educational Fund. “We believe that’s one of the reasons why Latino voters suffer from a disadvantage.”

But Hustings also pointed out that the standards of what determines a socioeconomic class are much less clear than a feature like ethnicity.

“We’re looking to see what the data shows us and have the data kind of drive where we should be paying closer attention,” added Padilla, who is president of NALEO.

“Population growth has to be a little bit ahead of the political maturity of a community, and the role of an organization like NALEO and the counterparts in the Asian community and others is to try to minimize that lag,” he said. “Just because a community is growing in population doesn’t mean that overnight there’s the infrastructure and experience in place to immediately seek an elected office successfully at the local level, let alone at the state or federal level.”

Another logistical barrier to that infrastructure and experience is language. Based on a preliminary analysis of 2010 census data, 30 California counties will need to make election materials available in at least one additional language in 2014, according to Shannan Velayas at the Secretary of State’s office.

The Supreme Court’s Voting Rights ruling didn’t affect these language requirements but rather eliminated the formula that determined which regions needed federal oversight in voting law.

Given that only three California counties fell into that category — Kings, Monterey and Yuba — and the Jim Crow origins of the federal law, one might assume the provisions and the ruling had little applicability to the complex and shifting civil rights issues that confront California.

“The challenge for those counties will be to continue to serve their minority voting populations in an effective way, but it would be without that federal oversight,” said Shasta County Registrar of Voters president of the California Association of Clerks and Elected Officials (CACEO) Cathy Darling-Allen. “I’m a whole lot less concerned about voters in California than I am about voters in other states quite frankly.”

Officials in those three counties were not immediately available to comment, but Assemblymember Luis Alejo, D-Monterey, issued this statement after the decision:

“Voter disenfranchisement is not just a thing of the past, but a current reality that still persists today in places like my Assembly District’s Monterey County. I urge Congress to act swiftly and accordingly in order to ensure voter equality by passing a new bill to determine which states would be covered by using updated data sources.”

According to Hustings, the federal provisions had been updated in the 1970s to address discrimination that targeted Latinos specifically, including practices that hurt language minorities. UC Berkeley political science Professor Lisa Garcia-Bedolla added that the ruling shifts the responsibility of enforcement from the Department of Justice to independent groups that choose to pursue litigation for discriminatory voting practices.

“There aren’t that many lawyers to do this. There aren’t that many organizations that will pay for it,” Garcia-Bedolla said. “You’re going to have to pick your battles.”

Those sentiments were echoed in the Judiciary Committee, along with the argument that even if an advocacy group had the resources to pursue voting rights violations, any litigation would be retroactive.

“[Section 4] stops those discriminatory voting policies before they can ever start,” Hustings added. “[Now] we have to deal with [discrimination] after the fact, after an election has happened, after the impact has already been felt.”

The concern is that without Sections 4 and 5 of the Voting Rights Act, the only remaining defenses for voting rights are after-the-fact. That is what is driving the debate forward both in California and across the country.

“In my opinion, California can and should be the leader,” Padilla said. “We pride ourselves in being leaders when it comes to information, when it comes to environmental policy, when it comes to worker protection, and elections law should be no different.”

But taking a leadership role in this area will force state leadership to confront some fundamental questions about how a centuries-old democratic system views discrimination. Much like the federal Voting Rights Act was written for a different era, a different region, and a different society, so was the United States Constitution.

“We now have a different legal environment, and we have to make sure the protections that are there are complementary to what has been lost at the federal level,” Garcia-Bedolla said.

“We have this very comfy electoral system that is not designed to protect minority interests because it’s majoritarian,” she added.