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Uncommon Sense from the Supreme Court on Voting Rights
   Friday, July 12, 2013   at   12:00 AM

On June 24, the U.S. Supreme Court angered many of the same leftists it thrilled a day later, by ruling that a key provision of the Federal Voting Rights Act was archaic and therefore inappropriate as a means of choosing which states and other jurisdictions should be regulated to assure equal access to the polls.

Well, of course they did. What else were the justices supposed to do – pretend that time has stood still for almost 50 years, and that no progress had been made toward eliminating institutional racism during that time? This was a solid, common-sense decision that directly challenges Congress to do something it can do easily, if it can stop bickering long enough to base our nation’s laws on reality.

The 1965 Voting Rights Act, a product of the Civil Rights era, certainly was necessary at the time it was enacted. In many parts of the United States, but especially in the Deep South, African-Americans and other minorities needed constitutional protections to assure that they had the same opportunity to vote as Caucasians. The case in question, Shelby County (Ala.) v. Holder, had challenged Section 5 of that law, which required specific jurisdictions to get federal approval before changing any of its election laws. That’s the federal power that the Justice Department had used – we would say abused – recently to block photo-ID laws in South Carolina and Texas.

Instead of ruling on Section 5, however, the court moved to Section 4 – a provision of the 1965 law that was last updated in 1975. Section 4 set criteria for which jurisdictions the federal government could oversee. By a 5-4 margin, the court ruled last week that those criteria were archaic and therefore invalid.

Chief Justice John G. Roberts Jr. wrote for the majority, “In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”

The upshot: states were being punished for the racial climate that existed there during the Civil Rights era, even though by all accounts those racial climates have improved significantly. The election of racial minorities to congressional seats and statewide offices in the Deep South make a potent argument for a change in the standards for any federal oversight of elections. But the Justice Department argued for maintaining the 1975 standards, and the court rejected that argument.

The court had warned Congress in a 2009 case on the Voting Rights Act, Northwest Austin (Texas) Municipal Utility District No. 1 v. Holder, that the standards of Section 4 needed to be updated, but Congress failed to act, as Roberts noted. “Congress must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past. We made that clear, and we make it clear again today.”

You might think that the institutional Left would herald the court’s decision as a sign that the law accomplished what it was intended to accomplish. You’d be wrong. Headlines and editorials shrilly claimed the court’s majority “gutted” the Voting Rights Act, or “set aside judicial restraint.” Law professor Richard Hasen wrote in The New York Times, “The court pretends it is not striking down the act but merely sending the law back to Congress for tweaking; it imagines that Congress forced its hand; and it fantasizes that voting discrimination in the South is a thing of the past. None of this is true.”

Please. Professor Hasen’s haughty objections to the contrary, the Supreme Court is sending the bill back to Congress for fixing, if Congress so chooses. The likelihood, or lack of it, that Congress has the political will to do so is not an issue for the court.

The court’s job is not to determine legislative criteria for assuring equal access to voting or to guess at the political whims of 535 elected politicians in the Capitol building. Its job is to gauge the cases that come before it in light of the Constitution. And that’s exactly what the court’s majority did.

We had taken a wait-and-see approach with this case, hoping the court would have the courage to toss an outdated law but realizing we had no basis for an opinion about whether the law had become legally invalid or not.

It’s time for self-appointed civil-rights leaders to recognize how much they have accomplished – and, if they determine more remains to be done, to work within the system to get Congress’s help in accomplishing it. The Supreme Court has served notice that Congress and the administration won’t be able to rely on archaic truths to impact present realities.


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