Forewarned is Forearmed


The Voting Rights Act of 1965 is landmark civil rights legislation. Signed into law by Lyndon Johnson, the Act outlawed discriminatory voting practices that kept untold thousands of African-American voters away from the polls. It also provided federal oversight over election administration, stating that certain states with a history of such discrimination couldn’t make any changes that would affect voting without the previous approval of the U.S. Department of Justice, by way of a procedure called “preclearance.”

The U.S. Supreme Court

Last week Shelby County, AL asked the Supreme Court to overturn the very heart of the Act, Section 5. Tough questioning from the Court’s more conservative members made it apparent that the Act is in peril. Should the court overturn Section 5, nine states, mostly in the South, would become free to change voting procedures without Federal approval.

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How did we get to this point? Even conservative Justice Samuel A. Alito Jr. praised the Act, saying, “It’s one of the most successful statutes that Congress passed in the 20th century…” and “there is no question that the Voting Rights Act has done enormous good?” Justice Ruth Bader Ginsburg added, “There isn’t anybody on any side of this issue who doesn’t admit that huge progress has been made.” Have we made such “huge progress?” Judge Sonia Sotomayor‘s questioned, “Do you think that racial discrimination in voting has ended, that there is none anywhere?” I believe the answer is clear – no.

We got to this point because Congress, as usual, refuses to take action until there is a crisis. In this case the crisis has been three years in the making, and there’s plenty of blame to pass around among Republicans, Democrats, and the Obama administration. They were warned, and chose silence and inaction rather than face the real possibility that one of the cornerstones of the Civil Rights movement could be declared unconstitutional.

The Supreme Court last considered the constitutionality of Section 5 of the Voting Rights Act in 2009 in Northwest Austin Municipal Utility District v. Holder. Chief Justice John G. Roberts Jr., writing for eight justices, avoided the question, but suggested that Congress should act to update the pre-clearance procedure, currently based on statistics from 1972. This warning came from all but one member of the Court – liberal and conservative, but since it wasn’t a crisis the administration and Congress turned a deaf ear.

“Things have changed in the South,” Roberts wrote for the eight-person majority. “Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”

“Section 5 is an important tool,” the chief justice said, but “The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance,” he wrote. “The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the states originally covered by Section 5 than it is nationwide.”

Congress has repeatedly extended the preclearance requirement: for 5 years in 1970, 7 years in 1975, and for 25 years in both 1982 and 2006. But since 1975, it has made no changes to the list of jurisdictions covered by Section 5.

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Chief Justice John Roberts

Last week, Chief Justice Roberts reeled off more statistics to suggest that the coverage formula no longer made sense. Massachusetts, which is not covered, “has the worst ratio of white voter turnout to African-American voter turnout,” he said. Mississippi, which is covered, has the best ratio, he said, with African-American turnout exceeding that of whites.

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Roberts’s earlier warning has gone unheeded, and the question at the heart of the argument is whether Congress, in reauthorizing the provision for 25 years in 2006, was entitled to use a formula based on historic practices and voting data from elections held more than forty years ago.

Roberts asked skeptically whether “the citizens in the South are more racist than citizens in the North.” Justice Anthony M. Kennedy, whose vote is probably crucial, asked whether Alabama today is an “independent sovereign” or whether it must live “under the trusteeship of the United States government.”

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Justice Antonin Scalia said the law, once a civil rights landmark, now amounted to a “perpetuation of racial entitlement,” causing cries of outrage from proponents including Justice Sonia Sotomayor. “Do you think that the right to vote is a racial entitlement?” she later asked a lawyer challenging the law, with an edge in her voice that left little doubt she was responding to Justice Scalia’s statement.

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The outcome of the case will probably remain in doubt until the end of the court’s current term, in June. Many legal observers predicted that the justices would overturn part of the voting law in 2009, only to be proven wrong. Instead, the Court warned Congress to step up and fix the law. It doesn’t take rocket science to offer new coverage formulas that would improve the Voting Rights Act by having it apply to the states that actually need supervision. But Congress shirked its duty and the Obama administration held its tongue and the power of the bully pulpit. Now, one of the “most effective laws of the 20th Century” is in jeopardy, and Congress may face starting all over again.

One has to ask: Why can’t Congress work together even on the most obvious non-partisan issues? When will Congress cease legislating by crisis? The American public has long since stopped listening to the cries of “wolf” coming out of Washington. When the very people who ultimately rule on a law’s constitutionality warn ‘fix it or we will,’ wouldn’t you think Congress would act? How sad that the American people have come to expect so little from their leaders.

Here’s an idea: while the Act’s constitutionality is up in the air, why not address the Court’s concern. There’s plenty of time before June, and Congress seems to be mostly twiddling its collective thumbs anyway. The Act should provide a means to end voting discrimination where it exists, without punishing states who have accomplished that very purpose. It’s a win-win-even Congress can look good for a change.

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Mr. President, Members of Congress, if you decide to roll the dice, leave it up to the Court, then don’t be surprised and cry foul when the Court follows through with its warning. You have no one to blame but yourselves. Will you finally lead or, as expected, will you once again wait for the crisis?