The Voting Rights Act in the 21st century

How long is 40 years?

For nine states it probably feels like a long time, or at least long enough. But what will the Supreme Court think?

Last Friday, the justices decided to consider whether Congress overstepped its constitutional authority by extending the “preclearance” provision of the Voting Rights Act of 1965. The preclearance provision dictates that nine states – as well as a few counties in other states – must obtain permission from the Justice Department or a federal court before making changes that affect voting.

More than four decades ago the logic of the provision was simple. Congress decided that discrimination related to voting was particularly prevalent in those states. The Supreme Court previously upheld the federal intrusion in 1966.

Congress decided that the “preclearance” provision should be maintained along with the rest of the Voting Rights Act, which got a 25-year extension in 2006.

Many cringe at the thought of weakening any aspect of the Voting Rights Act, though ideally we should hope that someday, perhaps when the extension expires in 2031, parts of the act will no longer be necessary.

Would the results be so terrible if the Supreme Court did indeed rule the provision unconstitutional?

Next week, Barack Obama will become the first black president of the United States. Attempts by some to make the appointment of Roland Burris to Obama’s vacated senate seat a racial issue have largely failed. The massive progress this country has made on racial issues is undeniable.

The contentiousness of voting laws sustains itself largely as a partisan issue, not as a manifestation of racial prejudice. Both parties are acutely aware that, as was the case with Minnesota, elections can come down to fractions of percentage points.  

When conventional wisdom held that Indiana’s voter ID law would suppress some likely Democratic voters, it isn’t a coincidence that the vote was split along the Court’s partisan lines.

The Voting Rights Act will remain important, but because poll access can be threatened in any state, having a special status for nine of them doesn’t seem particularly useful.

The biggest downside of the Supreme Court overruling the provision would be the elimination of a national discussion by accountable politicians on this issue. However, since the U.S. Commission on Civil Rights found the overall objection rate of submitted changes to the Justice Department to be practically negligible, it’s likely that fears of the consequences of losing preclearance are exaggerated.

When the Indiana voting ID law passed last year, similar fears emerged.

But after Barack Obama became the first Democrat to win Indiana since Lyndon B. Johnson in 1964, it seems unlikely that flagrant, systematic voter exclusion along racial or party lines remains a pressing issue today.