This is Section 5’s weakness, and in 2009, Roberts essentially told Congress to go fix it. By a vote of 8-1, the Supreme Court let Section 5 stand, but “current burdens,” Roberts wrote, “must be justified by current needs.” He has a point: Why does the Justice Department have the power to block voter ID laws in Texas and South Carolina, but not in Pennsylvania, Missouri, and Wisconsin? Shouldn’t Congress figure out what protections the right to vote merits, and then enforce them everywhere? Protecting the right to vote only against racially discriminatory measures, as opposed to all unjustifiable restrictions on voting, might no longer be the smartest approach, even for minority voters. As Pildes puts it, “If we were creating the law for the first time now, you wouldn’t pass Section 5. It's not clear we would pass a law structured along the unique lines of Section 5. We might well pass a law that protected the voting rights of all citizens uniformly.”
But before you decide it’s OK for the Supreme Court to scrap Section 5, think about how likely it is that Congress is going to pass a New and Improved Voting Rights Act any time soon. And think too about all those voter ID requirements, and efforts to curtail early voting, that states have tried in the last couple of years. They are the contemporary version of voter suppression for poor and minority voters, who tend to vote Democratic—a throwback and a scourge. We need every weapon at our disposal to beat them back. It’s true that laws restricting voting have so far mostly been put on hold or struck down—the Brennan Center counts 11 court decisions blunting their impact, and two repeals. Courts turned to a variety of legal theories, from state constitutions to Bush v. Gore. Section 5 wasn’t the only remedy, but it’s what stopped the voter ID laws in South Carolina and Texas, and early-voting restrictions in Florida.* Section 2, by contrast, didn’t come into play. So we really don’t know if that part of the law can do the job Section 5 is currently doing.
Just as important, the minority vote would have led to a very different story if the 2012 results had been just a few points more in favor of Republican candidate Mitt Romney. If voter ID laws had succeeded in suppressing turnout among blacks and Hispanics, we’d see this election in a wholly different, and alarming, light.
That’s what I mean about timing: The Supreme Court should not be in the business of telling Congress it can’t pass a civil rights law based on the outcome of the last two presidential elections. Not in light of the decades of dismaying history that came before. Section 5 isn’t perfect, but it’s what we’ve got.
Before the Supreme Court decides the Alabama case, I want to learn a lot more about how the Voting Rights Act is actually playing out on the ground. For example, the law also addresses redistricting, which means that it provides some check to gerrymandering. How is that actually working in Southern states, and to whose benefit? And what kind of voter suppression has Section 5 headed off recently? I’m going to dig into those questions by looking at some of the current cases the Justice Department has addressed. If you have experiences to share or tips about what I should investigate, I’d love to hear them—send to email@example.com. Email may be quoted in Slate unless you stipulate otherwise. If you want to be quoted anonymously, please let me know.