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.
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.
It’s intriguing then that New York City isn’t eager to get out of the federal penalty box. Today, progressive, majority-minority New York City would seem to be a poster child for the claim that Congress has no basis to presume certain jurisdictions guilty based on their long-ago histories of discrimination—that when it comes to racism, past performance is no guarantee of future results. It is a near certainty that every one of the xenophobic New Yorkers who voted for the literacy test in 1921 is now dead. In 1989, the city elected its first African-American mayor; in 2009, the city council lost its white majority for the first time ever. (Shelby County, Ala., by contrast, is a terrible poster child for this claim: The white-flight exurb of Birmingham brought the case after its attempt to gerrymander its only majority-black city council district out of existence was blocked by the feds.) Why then is New York City, in a joint amicus brief filed by Mayor Michael Bloomberg and City Council Speaker Christine Quinn, urging the feds to continue presuming Manhattan, Brooklyn, and the Bronx guilty of racist voter suppression?
In its brief, which was pointedly filed the week of Martin Luther King Day, the city argues less as a covered jurisdiction than as the nation’s historic bulwark of social liberalism and its international gateway, guarding imperfect but progressive legislation from a reactionary court. It was the 1964 murder of two white New Yorkers, Michael Schwerner and Andrew Goodman, on a voter registration drive in rural Mississippi that rallied the nation behind the Voting Rights Act in the first place. In his filing statement, Mayor Bloomberg explained, “while New York has come a very long way since the 1960s … there remain other jurisdictions where there are efforts to impose unnecessary burdens.” Essentially New York will put up with the federal oversight because it doesn’t trust places like Alabama. And running a city where native-born whites are a small minority—New York City is now 37 percent foreign-born and, as the amicus brief notes, 67 percent minority—the mayor feels a certain responsibility to defend members of minority groups nationwide.
The brief itself is a document only a lawyer could love. It argues that Section 5’s preclearance requirements are “nominal and non-obtrusive,” conspicuously leaving out any reference to the halted 1981 primary. And though the brief rightly argues that, in an era in which demographics in both the city and the nation are becoming more diverse, the protections of Section 5 are more needed than ever, it fails to follow its own logic to the conclusion that Section 5 must be modified to better fit the country’s changing demographics.
The City’s brief notably avoids offering any defense of Congress’ coverage formula, which still relies on 1960s-era demographic data. Relying on more current data would likely flip the coverage scheme in New York City, increasing scrutiny on the two boroughs exempted from preclearance—Queens and Staten Island—in which the native-born white power structure has been most recently challenged by changing demographics. In a 2002 Election Day incident in Flushing, a once near-lily-white Queens neighborhood which has lately become almost entirely Asian, a white poll worker complained that Asian-American voters “should learn to speak English.” But since Queens was not heavily Puerto Rican in the 1960s, according to the Section 5 coverage formula, it need not preclear the electoral changes carried out by bigoted officials like this one.
Similarly, the most important voter suppression effort during the 2012 election took place in Pennsylvania, which was once overwhelmingly white and is exempt from preclearance even though it is now rapidly diversifying. (The Keystone State saw an 83 percent increase in its Latino population in the last census period.) In advance of the 2012 election, Republican state legislators passed a law requiring citizens to produce a photo ID to vote, knowing that in majority-minority Philadelphia fully 18 percent of residents have no drivers’ license, the most common form of ID specified under the law. As America’s racial diversity has spread beyond the historically diverse Southern tier and polyglot Northern metropolises to the nation as a whole, Section 5 remains stuck in the past.
Of course, just because a law is a bit out of date or is less than ideal doesn’t necessarily make it unconstitutional. But odds-makers think the conservative Roberts court is likely to strike down Section 5. Perhaps the bright, progressive legal minds in places like New York City should get a head start and figure out what a new, better preclearance coverage formula would look like. It would likely monitor Queens more closely than the Bronx and watch Pennsylvania as closely as it watches Alabama.