The Supreme Court takes aim at the Voting Rights Act.

Oral argument from the court.
April 29 2009 8:06 PM

How Can Rights Feel So Wrong?

The Supreme Court takes aim at the Voting Rights Act.

Voters. Click image to expand.
Voting in Washington, D.C.

One way to think about the quest for racial equality in voting in America is to liken it to a long and arduous car trip. A trip delayed for almost 100 years, because although the 15th Amendment guaranteed the right to vote regardless of "race, color, or previous condition of Servitude" in 1870, Southern states disenfranchised black voters for decades through poll taxes, literacy tests, and intimidation. It was only when Congress enacted the Voting Rights Act of 1965 that the road trip could finally begin.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

As is often the case with long car trips, almost immediately after the Voting Rights Act was passed, a chorus of wee voices from the back seat began to chorus, "Are we there yet? Are we there yet? Are we there yet?" Those states singled out for extra government regulation wanted to know whether racism had yet been thwarted and they could have their autonomy back. Thus the Supreme Court has, since the enactment of Section 5 (which specifically targets election practices in mostly Southern states), heard four challenges to it. And each time the court has agreed that we haven't yet reached a place where Section 5 is unnecessary. But it's always been hopeful that day will come.

Now, different justices have different approaches to determining whether we have yet achieved the end of racial inequality in America. Justice Sandra Day O'Connor, for instance, hypothesized back in 2003 that we would only need affirmative-action programs for 25 more years—the constitutional equivalent of tossing a bag of gummy bears into the back seat. Chief Justice John Roberts, on the other hand, was already waving goodbye to the Voting Rights Act in the rearview mirror back in 1982, when, as a young lawyer in the Reagan Justice Department, he worked heroically if unsuccessfully to limit its reach. Today, when Roberts says of the Voting Rights Act, "it begins to look like this is going to go on forever," you have the sense that he's already at the rest stop, tossing back a Big Gulp.

The question of whether Section 5 is still necessary is very much on the justices' minds today as they reflect on whether to strike the thing down in its entirety. What most of them forget is that they are not meant to be driving the car; they are supposed to be judging.

Section 5 was originally set to expire in 1970 but has been reauthorized by Congress several times, most recently in 2006. The provision requires state officials to get permission or "preclearance" from the Justice Department or a federal court before making new local voting rules, but only for so-called "covered" jurisdictions—meaning all or parts of 16 states, mostly Southern states that were misbehaving back in the 1960s and '70s. Today's challenge, in Northwest Austin Municipal Utility District No. 1 v. Holder, comes from a Texas municipal utility district that didn't even exist in the 1960s and '70s, and has no history of discriminatory conduct to boot. The district lost in federal district court both on its claim that it should be allowed to "bail out" of the Section 5 preclearance scheme and on its claim that Section 5 is unconstitutional.

It's too bad you cannot watch oral argument from this morning live on C-SPAN (you can listen here), because when the court opts to act like a Super-Congress—albeit a smarter, better looking Super-Congress with less hair—we really should be allowed to watch.

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The issue that consumes the court's conservative justices today is how only three years ago, Congress could have gathered 16,000 pages of testimony, at 21 different hearings over 10 months, and then reauthorized Section 5? No, they are not commending Congress for its diligent record-building and strict adherence to prior Supreme Court instructions. They are asking, Why defer to a Congress that is so damn wrong? These justices—and there appear to be five of them—are ready for a do-over with themselves acting as legislators.

Gregory Coleman represents the municipal district, and he argues that the preclearance system was an "extraordinary remedy" for "extraordinary emergency circumstances" that no longer exist. "We are in a different day," he says.

Justice David Souter disputes that the day is all that different, laying out the recent empirical evidence of voting disparities and government misconduct. Today looks a lot more like 1965 than you might believe. Justice Stephen Breyer adds yet more not-sunshine-and-roses data to the pile. Coleman responds that the racial disparity situation is actually far worse in places like Massachusetts, which was not singled out for special treatment under Section 5. This disparity gets Justice Anthony Kennedy worked up about unequal treatment of similarly situated states, and as Rick Hasen pointed out in Slate earlier in the week, the name of the game today will be getting Kennedy worked up.

Souter repeats his claim that Congress had heaps of evidence of an ongoing disparity in "racial attitudes," to which Coleman replies that even if that's so, it "does not justify a presumption that State and local officials in these areas are so racist that they cannot be relied on to pass and enforce fair voting laws."