Will the Supreme Court strike down what President Lyndon Johnson called “one of the most monumental laws in the entire history of American freedom”? That is the question before the justices on Wednesday, when they will hear a challenge to the constitutionality of a key provision of the Voting Rights Act. Enacted in 1965, it was designed to end, once and for all, the long, ugly history of racial discrimination in voting in America. The law, widely recognized as a remarkable success, was reauthorized in 2006 in a near-unanimous vote in Congress. As Americans have come to recognize, however, the only votes that really matter are those of the justices of the Supreme Court. And there’s every reason to suspect that five justices will vote to strike down one of the law’s most important provisions. That provision is known as “Section 5,” and it requires jurisdictions with a history of racial discrimination in voting to obtain the approval of the Department of Justice or a special court in Washington, D.C., before adopting any change in their voting rules. If one of these covered jurisdictions wants to move away from single-member districts to an at-large election, as several tried to do to reduce the voting strength of racial minorities, or change the voting hours, that change has to be “precleared” before going into effect.
This provision has been upheld in eight—yes, eight—previous Supreme Court decisions. Yet Shelby County, Ala., joined by conservative legal organizations, argues that preclearance is now unconstitutional because there’s no longer any significant efforts to discriminate in voting. As a result, the burden the law imposes is no longer justified, the county’s lawyers argue.
Preclearance isn’t the only way to combat discrimination, of course. Another provision of the law, which isn’t being challenged by Shelby County, outlaws any election procedures or rules that discriminate on the basis of race. The provision is valuable but suffers from the same problem that most civil rights laws suffer from: it’s costly and difficult to prove racial discrimination after the fact, and so much discrimination is never remedied.