History will repeat itself in the chambers of the Supreme Court this week. The very state where the fight for voting rights reached its critical peak nearly 50 years ago is once again at the center of the dispute over democracy in America. But oddly, the political and legal odds may now be tilting away from civil rights and back toward an era in which the federal government had limited power to protect voters of color in the South from the machinations of local leaders. The Supreme Court will hear arguments on Wednesday from an Alabama county that is challenging the constitutionality of Section 5 of the Voting Rights Act. That section protects voters of color in sixteen states (some fully covered, some partially), many of which have long brutal histories of denying black Americans their voting rights. It does this by making covered jurisdictions “preclear” election law changes with the federal government before implementation.
Shelby County claims Section 5 is unconstitutional because it treats covered jurisdictions, which hold 25 percent of the nation’s population, differently than the rest of the nation. The Supreme Court must decide whether to continue holding Section 5 jurisdictions, most of which are in the Deep South, under the watch of federal officials, or to strike the section so that all states are treated the same, whether legacies of oppressive voter policies exist or not.
If the court strikes Section 5—and its conservative justices have already signaled they may do so—individuals could still file legal complaints, but no longer would the federal government be empowered to proactively watchdog the polls.
The Voting Rights Act would be held together by Section 2, which mostly allows lawsuits after an offending law has already been passed, and too often after damage is already done. Pursuing such reactionary litigation routinely would stretch the Justice Department and civil rights groups beyond capacity. Remember all the court challenges before the November 2012 election? Imagine that on crack.
A brief history on how Section 5 became Section 5 is necessary to illustrate its imperative. The debate that will happen in the Supreme Court this week is not new. Rather, it’s best understood as an extension of a legal tug of war between the federal government and Southern states that began just six months after the Voting Rights Act became law.