Why the Supreme Court should uphold a section of the Voting Right Act of 1965

Wednesday, April 29, 2009

WITH AN African American president, does the nation still need its decades-old voting rights laws?

This is one of the questions likely to animate oral arguments this morning in a Supreme Court case that could determine how far the federal government may go in policing states with histories of racial discrimination.

At issue is Section 5 of the Voting Rights Act of 1965, which mandates that 16 states, mostly Southern, obtain approval from the Justice Department or a federal judge before changing voting procedures; Section 5 also applies to individual jurisdictions within those states. The section was enacted after federal lawmakers became frustrated by some states' regular attempts to evade laws meant to correct voting discrimination. Congress set a five-year term for the law but has extended it three times, most recently in 2006, when overwhelming bipartisan majorities in the House and Senate approved a 25-year extension, signed by President George W. Bush.

Critics argue that Section 5 gives unprecedented and unconstitutional power to the federal government over election matters that should be the province of the states. They also argue that Section 5 is no longer needed, citing not only President Obama's election but the thousands of African Americans who serve in public office at all levels.

Section 5 is indeed a powerful and intrusive tool, and progress has been made on minority participation. Yet Section 5 is, sadly, still relevant and necessary today.

Republicans, including former Senate Majority Leader Bob Dole and former attorney general Richard L. Thornburgh, filed a brief that makes a compelling case for upholding Section 5. It notes that between 1982 and 2006, often under Republican presidents, the Justice Department rejected 700 requests for voting changes from covered states after concluding that they were discriminatory. The officials also point to extensive findings by the House and Senate in 2006 that showed that "voting changes devised by covered jurisdictions resemble those techniques and methods" used decades ago, including discriminatory redistricting plans, switching offices from elected to appointed positions, relocating polling places and changing elections from single-member districts to at-large voting.

No state should be punished forever for the sins of the past, and Section 5 rightly allows covered states or their political subdivisions to get out from under pre-clearance requirements by proving to the Justice Department or the D.C. federal court their faithful adherence to the voting rights laws for the previous decade. Seventeen jurisdictions in Virginia have earned such a "bailout" within the past few years.

Yet the political leaders in this country decided a mere three years ago that this peculiar and powerful federal oversight must be retained to protect what some have called the right from which all others flow. That political judgment, supported by empirical evidence of lingering discrimination, deserves great deference.

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