Does a federal law that applies to some states but not to others, even to some counties but not to others, make constitutional sense? That’s the question the country has been debating, sometimes bitterly, across political, geographical and racial lines for almost half a century now. The law in question is of course the 1965 Voting Rights Act, which made the most fundamental right of citizenship a reality for millions of Americans, mostly black and mostly in the South, to whom it had been long denied through the slimiest and most cynical kinds of political chicanery.
The heart of the Act is that specified regions with a documented history of voter discrimination must get federal approval for changes in election procedures, including reapportionment. Both Alabama and Georgia fall under its mandate, as do Alaska, Arizona, Louisiana, Mississippi, South Carolina, Texas and Virginia. So do specific counties in California, Florida, New York, North Carolina and South Dakota, and even local governments in Michigan and New Hampshire. (As a glance at that list makes clear, African Americans aren’t the only Americans to have faced poll discrimination.)
The argument now is whether the law has outlived not just its usefulness, but also its essential fairness (if indeed it was technically and constitutionally “fair” in the first place). Although its most outspoken political foes now are Republicans, the Voting Rights Act was extended most recently in 2006 by a GOP-majority Congress and signed by President George W. Bush.
One of the arguments against the law is that it relies on cases and statistics that are literally decades old, and is based in many cases on circumstances that have long since changed or vanished. Though the U.S. Supreme Court sidestepped the issue in a 2009 Texas case, Chief Justice John Roberts noted that some areas still governed by the law have better minority registration and voter rates than some that aren’t.
Whether that fact is attributable to the law itself is critical to this whole debate.
It doesn’t help that some of the states working to overturn the Voting Rights Act have the most aggressive so-called Voter ID laws which, in effect if not provably in intent, put up new hoops for predominantly poor and minority voters to jump through on their way to the voting booth. Some of these state laws barely passed constitutional muster — if they passed at all.