Forty-eight years ago, exasperated with the persistent abuse of black voters, Congress put most of the American South in a timeout. Now the Supreme Court appears poised to end those sanctions. It shouldn’t. But that doesn’t mean the selective scrutiny applied to Southern states is necessarily fair. As the justices consider the case of Shelby County v. Holder, which was argued before the court Wednesday, they should keep in mind one goal above all others: protecting the right to vote, regardless of region or other circumstances. The Voting Rights Act of 1965 bans discriminatory voting procedures nationwide, codifying the 15th Amendment’s guarantee of the right to vote regardless “of race, color, or previous condition of servitude.” The law has stricter requirements, however, for jurisdictions with a long history of disenfranchisement.
One of these jurisdictions is Shelby County, Ala., which is required to get federal approval (or preclearance) for any change, however small, to its voting procedures. In 2010, arguing in part that all states should be treated equally, Shelby County sued to prevent the Justice Department from enforcing this provision.
Shelby County’s argument, echoed by similarly targeted jurisdictions, can be reduced to two points: First, we’ve learned our lesson. Second, other places, including many not subject to the preclearance requirement, are worse.
Justice Anthony Kennedy appeared sympathetic to this point, asking why Congress still needed to “single out” some states. And Chief Justice John G. Roberts neatly summed up this view in an opinion four years ago that upheld the law while all but inviting Shelby County’s lawsuit. “Things have changed in the South,” Roberts wrote.
Yes, they have. There is vastly greater minority representation in Congress and in state capitals now than 50 years ago. Part of the reason for this success is the Voting Rights Act itself, which forced change on entrenched interests.