One year ago, maybe even six months ago, conventional wisdom had it that a key provision of the Voting Rights Act was in jeopardy, susceptible to another aggressive ruling by a very conservative United States Supreme Court. The five Republican-appointed justices would rule, the theory went, that there was no longer a need for local lawmakers to “pre-clear” voting laws or gerrymanders with federal officials, because Section 5 of the Voting Rights Act had been so successful since its implementation that it was no longer necessary to protect minority rights. Justice Clarence Thomas, a black man who grew up in Georgia, one of the states “covered” by the Voting Rights Act because of its long history of racial discrimination, said so himself just a few years ago. In Northwest Austin Municipal Utility District v. Holder. a 2009 decision in which the Court uneasily upheld the Voting Rights Act, Justice Thomas declared, as the lone dissenter, that: “The extensive pattern of discrimination that led the Court to previously uphold §5 as enforcing the Fifteenth Amendment no longer exists. Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence. And the days of “grandfather clauses, property qualifications, ‘good character’ tests, and the requirement that registrants ‘understand’ or ‘interpret’ certain matter,” are gone. There is thus currently no concerted effort in these jurisdictions to engage in the “unremitting and ingenious defiance of the Constitution,” that served as the constitutional basis for upholding the “uncommon exercise of congressional power” embodied in §5.”
So when a live challenge to Section 5 was turned back this May by the D.C. Circuit Court of Appeals, when the judges there noted the provision’s viability in yet another decade of election strife, many people reckoned the Court would take the case styled Shelby County v. Holder, overturn the lower court, and narrow or strike down outright the contested statutory provision. These folks may yet be proven right. The Supreme Court still has not decided whether it will accept for review the Shelby County (Alabama) case. We should know in about a month. But whether the Court does or does not seek to re-enter this battlefield, none of the justices, including Justice Thomas, will be able to say with a straight face that Section 5’s usefulness has come and gone. Over and over again in the past few months, in states covered (Texas, Florida, and South Carolina) and not covered (Ohio, Wisconsin, and Pennsylvania) by the Voting Rights Act, the statute has been cited, and relied upon, to successfully block partisan voting laws designed to make it harder for minorities to vote or to have their votes counted.
The image of the statute’s usefulness — its necessity, really — has been bolstered by zealous GOP lawmakers (and their ALEC sponsors) who have overreached with new voter ID, early voting, and registration laws. The purpose of the laws, the legislative history that preceded them, and the trial testimony that followed them, vitiate the argument that “patterns” of official racial discrimination no longer exist. Yes, the laws on their face are racially neutral. But, as one court after another has noted, the laws’ disparate impact upon minority voters is clear.