A prediction: If the Supreme Court strikes down part of the Voting Rights Act this term, we’ll read about Obama’s re-election—and especially the role played by black and Hispanic voters—in a majority opinion by Chief Justice John Roberts. After noting that the president’s giant share of support among minority voters pushed him over the top in key states, Roberts could point out that some Republicans started shifting ground on immigration the very next day.
The first lesson that just about everyone has drawn from the election: With the white vote shrinking, both parties have to court minority voters. If Republicans don’t figure out how to appeal broadly to Hispanics, in particular, they’ll eventually say goodbye even to their stronghold of Texas. There’s a second possible lesson from the 2012 results, however, which would be controversial indeed in the hands of Roberts and the conservative wing of the court: Given their electoral muscle, perhaps minority voters no longer need the protection of Section 5 of the Voting Rights Act.
My own answer to the riddle—and I’m in good company—comes down to timing. After one or two watershed elections, is it really the job of the court to tell Congress that it overstepped when it reaffirmed Section 5, by an overwhelming bipartisan vote, a mere six years ago? That’s the nut of the case before the court, a challenge to Section 5 brought by Shelby County, Ala. To begin cracking it, let’s start with a little Section 5 history.
Congress initially passed the Voting Rights Act in 1965 to deal with massive and violent suppression of black voters in the South. Remember Medgar Evers pushed out of his Mississippi polling place at gunpoint, and Freedom Summer in 1964, when hundreds of college students traveled to his state and others to register black voters?* Three activists were killed that summer, many more were beaten, and dozens of black churches and businesses were wrecked and burned. And still, a year later only 6.7 percent of Mississippi’s eligible black voters were registered.
As New York University law professor Richard Pildes reminded me, part of the problem was that federal courts would strike down discriminatory measures like literacy tests, and Southern states and counties would quickly find ways to circumvent the court rulings. So in 1965, Congress gave the Voting Rights Act two sets of teeth. The first, Section 2, bans any voting practice that discriminates on the basis of race or ethnicity. It applies uniformly, throughout the country, and it has no expiration date. It’s enforced through lawsuits, with the burden of proof on the challenger, not the local or state government that has set up a new voting rule. The second part of the Voting Rights Act, Section 5, dealt directly with the problem of the recalcitrant South. Based on data showing a pattern of discrimination at the time, Congress created a category of “covered jurisdictions,” and said that for 25 years, any changes to voting rules in those places had to be cleared first by the Department of Justice, or approved in court, before they could go into effect. In these cases, the burden of proof is on the local and states governments to show that the changes they proposed won’t discriminate or dilute the power of minority votes. The list of covered jurisdictions includes most of the South, along with a smattering of counties and cities in other states.
In the decades since, a bunch of counties and cities have gotten themselves off the Section 5 list by showing that they’ve expanded voter participation and done their best to prevent intimidation and harassment. But when Congress last voted to reauthorize Section 5 in 2006, lawmakers left the law’s geographical scope intact. Pildes and other experts warned that this was a weird move, because there was no longer evidence that voting discrimination was an especial problem in all the Southern states that still have to go to the Department of Justice every time they want to change an election practice, and not a similar problem elsewhere. But Congress didn’t listen. And since then, the main study that supported the continuing relevance of Section 5, as written, has been effectively shredded. This is a problem the D.C. Circuit didn’t wrestle with in upholding Section 5 in the Shelby County case.
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.