By Editorial Board
Published January 25th 2009 in The New York Times
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.
Michael H. Drucker
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