Just as a new statue of Rosa Parks was being unveiled in the U.S. Capitol, across the street in the Supreme Court, the Judicial Branch was deciding whether or not we live in a post-racial America.
The argument put forth by the plaintiff in Shelby County v. Holder is that Section 5 of the Voting Rights Act of 1965 is an old cure for a new disease. That is, that racism is over due to a number of factors, from America reelecting a black president to more minorities in the House of Representatives than ever before, higher African-American turnout in some parts of the South than the North, and so on. The constitutional context of the case is grounded in questioning the legal right of Congress to renew the Voting Rights Act, as in 2006 it voted 98-0 to extend it for another 25 years.
Section 5 of the Voting Rights Act of 1965, the main point of contention in the case, requires certain jurisdictions with a history of discrimination to gain federal approval before making any changes to their voting practices. The law currently covers nine states, mostly in the South and a few other scattered jurisdictions, all with a history of voter discrimination. These covered entities can exempt themselves from the law if they do not have any acts of discrimination for 10 years, and more jurisdictions can be added if they are found to commit violations of the 14th and 15th Amendments.
The answer to whether or not Congress does have the right to extend these protections is pretty straightforward. Both the 14th and 15th Amendments, the amendments that the Voting Rights Act enforces and the amendments that extend equal protection and the guaranteed right to vote, state in their text that Congress is responsible for the enforcement of their provisions.
Beyond the legality of the Act, what seems like a greater point worth questioning is, what is the goal of striking down the Voting Rights Act? As put by Chris Hayes, “What is the interest on the other side of this case? It seems to me that you have the moral force of protecting people from systematic exclusion, discrimination on one side and on the other side, the best you can come up with is the sovereign dignity of Alabama?”
According to Justice Scalia during the hearing of Shelby v. Holder, the protections under the VRA amount to a “perpetuation of racial entitlement.” What reason for the VRA’s continuance is more likely than racial entitlement? An answer that seems quite obvious following the 2012 elections is the flood of attempts to pass restrictive laws that disproportionately affect minorities, who vote overwhelmingly Democratic.
As The New York Times points out, “[s]hould the court strike down the law’s central provision, it would be easier for lawmakers in the nine states to enact the kind of laws Republicans in several states have recently advocated, including tighter identification standards. It would also give those states more flexibility to move polling places and redraw legislative districts.”
What makes Section 5 of the VRA so essential is that it stops discrimination before it occurs. This is unlike Section 2, which remedies ills by allowing suits following discrimination. The obvious problem with that is there are no re-dos in elections. You have to wait two or four years for your next chance and live with the results in the meantime.
As Timothy Noah argued in the New Republic, this is a time in our country when the Voting Rights Act needs to be extended, not destroyed. As Noah pointed out, in June the Pennsylvania House Republican Leader Mike Turzai told a GOP crowd, “Voter ID, which is going to allow Governor [Mitt] Romney to win the state of Pennsylvania? Done.”
Turzai’s comment, amazingly, was deemed insufficient evidence to throw out Pennsylvania’s Voter ID law. This, of course, was due to Pennsylvania not being a “pre-clearance” state. While the law was eventually ruled “not to be enforced” by the same judge months after it was upheld, these laws, which according to Mother Jones account to 24 since 2011, will not all be struck down by judges. When 25 percent of African Americans do not have valid photo ID in a nation in which study after study has shown that voter fraud is for all intents and purposes nonexistent, we as “the world’s greatest democracy” should be making voting easier, not harder.