Not 1965 Anymore

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.

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.