What happens when a Supreme Court ostensibly committed to judicial restraint confronts a long-standing civil rights statute that offends its conservative majority’s sense that law should be colorblind, even if the world is not? That question will be front and center when the Court hears arguments Wednesday in Shelby County v. Holder, a case challenging the constitutionality of a central provision of the 1965 Voting Rights Act. The provision, known as Section 5, requires nine states, mostly in the South, and select jurisdictions in seven other states, to obtain federal approval for any change in their voting laws. Congress concluded that this was necessary to ensure equal opportunity in voting. But conservatives in some of the southern states have long complained that the law gives the federal government too much power, and now, Shelby County—a largely white suburb of Birmingham, Alabama found guilty of racial discrimination in voting as recently as 2008—has sued the US government to get it annulled. If the Supreme Court majority exercises restraint, it will acknowledge that Section 5 falls within Congress’s constitutionally assigned authority to enforce rights of equal protection and voting. But if the Court chooses to impose its own view of racial justice—according to which laws should be drafted without regard to race, even if race-conscious efforts are needed to forestall discrimination—it will invalidate a core part of one of the country’s signal civil rights laws. The Court has frequently reviewed the Voting Rights Act since its initial enactment, and has until now always upheld it. But this time around, the result could well be different. It shouldn’t be.
The Voting Rights Act is the most successful anti-discrimination law in US history. It has transformed a nation in which minority voters were routinely and systematically denied access to the ballot box, through literacy tests and the like, into one where registration and voter restrictions are the exception. And the Act has also defeated many attempts by states and local jurisdictions to gerrymander minority voters into districts designed to minimize or negate their influence.
Yet while there has been great progress, many of the problems the Act was designed to address persist in different ways today. Quite apart from the battles over “voter ID” rules during the 2012 election, “racially polarized voting,” in which white and minority voters divide along racial lines in the candidates they support, continues to occur in many parts of the country; and de-facto residential segregation is all too common. As a result, it is easy for those drawing voting district lines to group black or Latino voters into districts in which they are a minority, meaning that their votes will rarely if ever “count,” because candidates will need to appeal only to the white majority. And because minority voters often favor Democratic candidates, there is great temptation among Republican-dominated state legislatures to minimize the influence of those voters, even if old-fashioned racial animus is not the prime motivator.
Section 5 has provided an effective and flexible way to address these continuing problems. It applies to specific states and locales that have histories of voter discrimination and especially poor records of registering minority voters. Although most of the covered jurisdictions are in the South—Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia—the provision also governs all of Alaska and Arizona, and parts of California, Michigan, New Hampshire, New York, and South Dakota. Importantly, states and counties that have not discriminated for ten years may “bail out” of Section 5’s obligations, and many jurisdictions have done so. (The Justice Department has approved every such application since 1982). The law also empowers courts to “bail in” non-covered jurisdictions that show a persistent pattern of discrimination, and courts have imposed this requirement on jurisdictions in nine states.
Moreover, there is continued evidence of discrimination in many of the original Section 5 jurisdictions. The majority of successful voter discrimination lawsuits in the twenty-five years leading up to 2006, for example, were against jurisdictions covered by Section 5. Yet those jurisdictions represent less than one-quarter of the nation’s population, and ought to be less vulnerable to lawsuits precisely because their voting rules must satisfy preclearance. In 2012 alone, Section 5 blocked Texas from implementing a voter ID law that would have disproportionately barred black and Latino citizens from casting their ballots, and prevented a statewide redistricting plan that was found to be designed to reduce black and Latino influence in federal and state elections. Section 5 also compelled South Carolina to modify its voter ID law to reduce its discriminatory impact, by providing an exception for those who faced a reasonable impediment to obtaining a government-issued identification card.