Judging from their questions during recent oral arguments, the five conservative justices on the U.S. Supreme Court may be ready to strike down Section 5 of the Voting Rights Act, a key provision that helped stop the widespread disenfranchisement of African American and other minority voters when it was enacted in 1965. The prospect that the landmark statute might be ruled unconstitutional by the Supreme Court is causing as much angst in liberal circles as it is anticipatory glee in conservative ones.
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A golden opportunity to revamp the Voting Rights Act
The Supreme Court appears poised to strike down a key provision of the act. Liberals are worried, but it might be good for the country because the act needs to be brought into the 21st century.
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But liberals should not be so worried. Although it is politically incorrect to say, and it pains us as good liberals to admit it, the court's striking down of Section 5 would actually help move voting rights policy into the 21st century.
Conservatives likewise should not be so pleased with themselves. If the court declares Section 5 unconstitutional in Northwest Austin Municipal Utility District No. 1 vs. Holder, it would be one of the greatest exercises of judicial activism of our generation.
The Voting Rights Act was passed to address the many formal and informal mechanisms used by officials and the white electorate, particularly in the South, to prevent black citizens from voting: violence, intimidation, fraud, gerrymandering, poll taxes, literacy tests, whites-only party primaries, discriminatory enforcement of registration laws, property requirements and more.
Section 5, intended as a temporary fix, required that any changes in voting procedures get advance clearance from either the Department of Justice or the U.S. District Court for the District of Columbia. It targeted the worst state and regional offenders in 1965: Alabama, Georgia, Louisiana, Mississippi, parts of North Carolina, South Carolina and Virginia. Congress later added other jurisdictions, including Arizona, Texas and a few counties in Florida, to the list covered by Section 5.
The 1965 Voting Rights Act was a game-changer. The immense registration gap between black and white voters (20% versus 70% in Alabama in 1965) was noticeably reduced within five years. Today, the jurisdictions targeted by Section 5 are much improved, and most voting rights challenges arise in jurisdictions that aren't covered. For example, in the last two presidential elections, there were voting problems in Ohio and parts of Florida not covered by the act.
