George Will looks at the most controversial matter to be taken up by the Supreme Court in years: a case to decide whether Section 5 of the 1965 Voting Rights Act is Constitutional. Will explains:
The case concerns a manifestly anachronistic and therefore now constitutionally dubious provision of the Voting Rights Act of 1965.
That year, because they had used many tactics to suppress voting by blacks, six states and some jurisdictions in other states were required to seek permission — “pre-clearance” — from the Justice Department for even minor changes in voting procedures. In 1975, the act was extended to cover Texas and two other states. The act’s “bailout” provision, which ostensibly provides a path by which jurisdictions can end federal supervision, is so burdensome as to be often unusable. The pre-clearance requirements, which were originally intended to exist for five years, have been extended four times, most recently in 2006 — for 25 years. The Senate voted the extension to 2031 unanimously, which is evidence that genuflection had replaced reflection.
Now, however, a Texas utility district that did not exist until 1986 and that has never had a voting-related complaint says that the bailout provision has been virtually nullified by judicial interpretations. It further argues that the pre-clearance requirement — arguably the most intrusive law abridging states’ sovereignty — was a response to a vanished emergency and is, after 44 years of racial progress, an indefensible violation of the Constitution’s federal structure. The district argues that it “consigns broad swaths of the nation to apparently perpetual federal receivership” based on absurdly out-of-date evidence.
In 1966, the Supreme Court said the pre-clearance requirement was a “rational” response to that era’s crisis. In 1997, however, the court held that, to be justified, such an infringement of states’ self-government must demonstrate “congruence and proportionality” concerning the problem it addresses. The 25-year extension in 2006, which the Texas jurisdiction challenges, is incongruent and disproportionate because it was based on the evidence used for the 1975 extension — that of the 1972 and some earlier presidential elections. So the 2006 renewal is itself evidence that there are no contemporary findings of unconstitutional behavior proportional to the Voting Rights Act’s sweeping 1965 remedy. In 2031, which will be 59 years after the 1972 election, Congress probably will reflexively extend this receivership — unless the court insists upon the pertinence of evidence.
When African American turnout has reached historic highs and when record numbers of white voters have elected an African American Presiden, it’s hard to maintain that the Voting Rights Act is necessary or, more to the point, Constitutional. Defenders will point to Section 5 of the Fourteenth Amendment, which gives Congress wide latitude to ” to enforce, by appropriate legislation, the provisions of this article” (meaning the guarantee of equal protection). But the Court has made clear that power is not unlimited. So the question remains what extraordinary discrimination in voting still exists to justify such extraordinary federal intervention?
There is an entire civil rights industry devoted to the proposition that voting discrimination is still rampant and therefore the federal government must still regulate all manner of election procedures in the Old South (and other designated jurisdictions) despite forty years of electing African Americans to federal, state and local offices. The Obama administration will soberly argue that the nation has not much changed since 1965.
These days, Constitutional law boils down to what Justice Kennedy thinks. So your guess is as good as mine as to how the Court will rule. But I think two days before swearing in the first African American President most of us can agree this isn’t 1965 anymore.