New York Should Hate the Voting Rights Act—Why Is the City Defending It?

The law, lawyers, and the court.
Feb. 21 2013 11:58 AM

New York Should Hate the Voting Rights Act

Why the city is taking a principled stand to defend it.

Voter Mirenda Watkins casts a ballot containing her vote for the Presidential Election
Harlem resident Mirenda Watkins casts a ballot for president on Nov. 4, 2008

Photo by Lucas Jackson/Reuters

Next week, the Supreme Court will hear oral arguments in the highly anticipated case Shelby County, Ala. v. Holder. At stake is the constitutionality of Section 5 of the Voting Rights Act, the provision that requires jurisdictions with histories of voter suppression and disenfranchisement to “preclear” any proposed change in electoral procedures with federal authorities before implementation, in order to ensure that they have no discriminatory effects. Unsurprisingly, many of the jurisdictions covered by Section 5 have lined up with Shelby County, urging the court to strike down a provision they believe punishes them for the sins of their grandfathers. Pro-Shelby County amicus briefs, which allow interested third parties to weigh in on the constitutional issues at hand, have been filed by the Republican attorneys general of Alabama, Alaska, Arizona, Georgia, South Carolina, South Dakota, and Texas. But a handful of covered jurisdictions have weighed in on the other side. Most notable among them is New York City, which asserts that Congress is within its constitutional authority to subject the city to special procedures on account of discrimination dating back nearly a century.

The reasons why Southern states like Alabama and Georgia are covered by Section 5 are well known. At the close of Reconstruction, the resurgent white elite in these states relied on dastardly legal strategies and violence, up to and including outright murder, to keep African-Americans from voting, especially in the majority-black counties that blanket the Deep South.

In other historically majority-minority sections of the country, native-born whites used similar albeit generally less violent voter suppression schemes to keep Latinos from voting, in states like Arizona and Texas, and Native Americans from casting ballots, in places like Alaska and South Dakota.

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In the state of New York, home to the nation’s most international city, a burgeoning immigrant population at the turn of the last century sparked a similar disenfranchisement push, one that ultimately led three of New York City’s five boroughs to become covered jurisdictions under the Voting Rights Act. New York’s voter suppression effort began in fits and starts. One early-20th-century law required that voters in the state’s largest cities reregister every year, a cumbersome mandate imposed under the pretext that urban voters’ frequent changes of address opened the door to voter fraud. In the 1908 election, concern that Jewish immigrant voters would support Socialist Party candidate Eugene V. Debs prompted city authorities to hold voter registration solely on Saturdays, the Sabbath during which observant Jews are forbidden from writing, and on a single Monday, Yom Kippur.

In 1921, New York State voters adopted a more comprehensive disenfranchisement strategy: They passed a referendum mandating that registrants pass an English-language literacy test. Unlike Southern literacy tests, which were studded with trick questions and capriciously graded by all-white registration staffs (see Jim Crow Louisiana’s test here), the New York State test sincerely tested English literacy—in a sincere effort to disenfranchise citizens who didn’t speak English as their first language.
As it happened, the people most disenfranchised by the test were not actually immigrants, who were rare after Congress passed the National Origins Act and Asian Exclusion Act in 1924, but internal migrants from Puerto Rico. Born on U.S. soil, Puerto Ricans had voting rights through birthright citizenship. But having been educated in the Spanish-language public schools on the island, they couldn’t pass New York’s English-language test and subsequently lost their ability to vote when they moved to the city seeking better jobs. At the time the Voting Rights Act passed, only 30 percent of Puerto Rican New Yorkers were registered to vote. After the 1968 election, Manhattan, Brooklyn, and the Bronx became covered jurisdictions according to a coverage formula that mandated preclearance for jurisdictions that had used a “test or device” to limit voting and had low registration and/or turnout statistics. A separate provision of the Voting Rights Act, which is not being challenged at the Supreme Court, invalidated New York’s literacy test as well as the pseudo-literacy tests in the South.

In the decades since passage, the three covered New York City boroughs have cleared over 2,000 proposed changes in voting procedures with the federal government. But preclearance process has not always gone smoothly for the city. In the most dramatic case, in 1981, federal authorities stopped a mayoral primary (the de facto election in then-solidly Democratic New York) on two days’ notice, since changes in city council districts had not been submitted for preclearance. When the Justice Department investigated subsequently, it found the proposed changes could not go forward because they had racially discriminatory effects.

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