The Supreme Court will take up a case from Alabama next week to decide whether to strike down a key part of the Voting Rights Act of 1965, a landmark measure that made voting a reality for blacks in the South and won extension by a near-unanimous vote from Congress in 2006. Critics on the right agree the law was a success, but they contend it is now outdated and unfair to the South. They also say it is used mostly as a way to force states to draw electoral districts that favor black or Latino candidates. But liberal legal scholars have urged the justices to step back and pay attention to the history of the Reconstruction era. They are pointedly addressing the conservatives, led by Justice Antonin Scalia, who say the court should follow the actual words and original understanding of the Constitution. The 15th Amendment, added in 1870, says the right to vote “shall not be abridged or denied … on account of race” and “Congress shall have the power to enforce this article by appropriate legislation.”
Yale Law School professor Akhil Amar, an expert on how the Reconstruction era changed the Constitution, says the 15th Amendment made clear that Congress, not the courts and certainly not the Southern states, was entrusted with protecting voting rights. So the Voting Rights Act “is obviously appropriate legislation,” he said.
“This is as pure a test as you could have as to whether the conservatives will follow the text and history of the Constitution if it leads to a result they may not like,” said Doug Kendall, president of the Constitutional Accountability Center. But civil rights lawyers are worried nonetheless. Four years ago, the high court sounded a warning that the days of the Voting Rights Act may be limited.
“Things have changed in the South,” said Chief Justice John G. Roberts Jr. He noted that blacks now register and vote at rates the same as or higher than whites in several Southern states, including Mississippi and Georgia. Justice Anthony M. Kennedy said he was troubled by a law that treats Georgia differently from Ohio.