Some people claim that Barack Obama's election has ushered in a "postracial"
America, but the truth is that race, and racial discrimination, are
still very much with us. The Supreme Court should keep this reality
in mind when it considers a challenge to an important part of the Voting
Rights Act that it recently agreed to hear. The act is constitutional
— and clearly still needed.
Section 5, often called the heart of the Voting Rights Act, requires
some states and smaller jurisdictions to "preclear" new voting
rules with the Justice Department or a federal court. When they do,
they have to show that the proposed change does not have the purpose
or effect of discriminating against minority voters.
When Congress enacted Section 5 in 1965, officials in the South were
creating all kinds of rules to stop blacks from voting or being elected
to office. Discrimination against minority voters may not be as blatant
as it was then, but it still exists. District lines are drawn to prevent
minorities from winning; polling places are located in places hard for
minority voters to get to; voter ID requirements are imposed with the
purpose of suppressing the minority vote.
After holding lengthy hearings to document why the Voting Rights Act
was still needed, Congress reauthorized it in 2006 with votes of 98
to 0 in the Senate and 390 to 33 in the House. Now, a municipal utility
district in Texas that is covered by Section 5 is arguing that it is
unconstitutional, and that it imposes too many burdens on jurisdictions
covered by it.
If the Supreme Court — which is expected to hear arguments in
the case this spring — strikes down Section 5, it would be breaking
radically with its own precedents. The court has repeatedly upheld the
Voting Rights Act against challenges, and as recently as 2006 it ruled
that complying with Section 5 is a compelling state interest. It would
also be an extreme case of conservative judicial activism, since the
14th and 15th Amendments expressly authorize Congress to enact laws
of this sort to prevent discrimination in voting.
A perennial criticism of Section 5 is that it covers jurisdictions
it should not, or fails to cover ones it should. There is no way to
construct a perfect list, but Congress has done a reasonable job of
drawing up the criteria, and it has built flexibility into the act.
Jurisdictions are allowed to "bail out" if they can show that
they no longer need to be covered, and courts can add new jurisdictions
if they need to be covered.
In last fall's election, despite his strong national margin of victory
— and hefty campaign chest — Mr. Obama got only about one
in five white votes in the Southern states wholly or partly covered
by Section 5. And there is every reason to believe that minority voters
will continue to face obstacles at the polls.
If Section 5 is struck down, states and localities would have far more
freedom to erect barriers for minority voters — and there is little
doubt that some would do just that. We have not arrived at the day when
special protections like the Voting Rights Act are not needed.
