Does the re-election of the first black president mean the Voting Rights Act of 1965 is unnecessary and perhaps unconstitutional? The Supreme Court’s decision last week to consider a constitutional challenge to a key section of the act suggests that a perverse outcome of the 2012 campaign may be that President Obama’s victory spells doom for the civil rights law most responsible for African-American enfranchisement. The central question in the constitutional debate is whether times have changed enough in the nearly five decades since the act’s passage to suggest that the law has outlived its usefulness. The unprecedented flexing of racial minorities’ political muscle on Nov. 6 does make it clear how much times have changed. But a campaign marred by charges of voter suppression and Election Day mishaps also makes the need for federal protection of voting rights clearer than ever.
The case before the court, coming out of Shelby County, Ala., concerns Section 5 of the act, which requires some states and jurisdictions (mostly in the South) to seek permission from the federal government before they can implement any law related to voting. If a voter-ID law, redistricting plan or other election law is seen as worsening the position of racial minorities, then the Department of Justice or a federal court in Washington will not allow the voting change to go into effect. Earlier this year, for example, a federal court struck down Texas’s recently enacted voter-ID law and Congressional redistricting plan on that basis.
Unless a covered jurisdiction gets itself out from under the act by showing a clean voting rights record for the previous decade, it will be required to seek federal permission for all its voting laws until the law is set to expire in 2031.
The Supreme Court has reaffirmed the constitutionality of Section 5 four times. Congress re-enacted it in 2006 with tremendous bipartisan support. But times have changed at the court. Specifically, the constitutional standard for enforcing civil rights has become more restrictive, requiring such laws to be proportional to the constitutional evil they seek to prevent or remedy. As a result, the court has struck down or narrowed the Religious Freedom Restoration Act, the Americans With Disabilities Act and the Age Discrimination in Employment Act.