A federal appeals court in Washington has upheld a key part of the Voting Rights Act, one that requires states and localities with a history of discrimination against minorities to “pre-clear” changes in their election procedures with the Department of Justice or a federal court. The reasoning behind the 2-1 ruling is persuasive; Chief JusticeJohn G. Roberts Jr.and other members of the Supreme Court should exercise judicial restraint by refusing to reconsider it. In an earlier, 2009 decision, the chief justice recognized that Congress has the power to enforce the 15th Amendment’s guarantee of a right to vote. But he warned ominously that the pre-clearance requirement in Section 5 of the Voting Rights Act, and the formula under which states were subjected to it, raised “serious constitutional questions.
“Things have changed in the South,” Roberts wrote in that opinion, joined by seven other justices. “Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Given such progress, Roberts said, continuing to require pre-clearance in some states but not others might amount to an unconstitutional violation of “the fundamental principle of equal sovereignty” of the states. The implication was that discrimination is no more (or less) a problem in the covered states than in the rest of the country.
Last week’s ruling by the U.S. Court of Appeals for the District of Columbia Circuit suggests otherwise. It acknowledges that when Congress extended Section 5 in 2006, it was “primarily focused on the persistence of voting discrimination in covered jurisdictions” rather than on discrimination in all states. But it also refers to “several significant pieces of evidence suggesting that the 21st century problem of voting discrimination remains more prevalent in those jurisdictions that have historically been subject to the pre-clearance requirement.” Judge David Tatel’s majority opinion concedes that “the coverage formula’s fit is not perfect.” The question, however, was whether Congress had compiled a sufficient record to justify “substantial deference” from the courts.