Voting rights today: The more things change…

By Michelle Chen Jun 23, 2009

In a much-anticipated decision this week, Chief Justice John Roberts wrote that thanks to the passage of the Voting Rights Act more than 40 years ago, “we are now a very different Nation.” The politically fraught case, Northwest Austin Municipal Utility District Number One v. Holder, challenged the Supreme Court to judge exactly how different we are today—and the answer was a pointed silence. By ruling on a narrow statutory issue, the court skirted the broader constitutional question surrounding the validity of the law in its current form. The decision (which basically favored the plaintiff) enabled all parties to claim some kind of victory, and civil rights advocates are cautiously relieved. As a legal pillar of past civil rights struggles, Section 5 of the VRA has placed jurisdictions (states, counties and localities) under federal monitoring based on historical evidence of voter suppression. Congress reauthorized the Act’s key provisions in 2006, but the right has attacked the law, claiming it is overly restrictive and outdated. (Justice Clarence Thomas wrote that Section 5 could "no longer be justified as an appropriate mechanism for enforcement of the Fifteenth Amendment.”) That argument has gained currency in the wake of Obama’s “post-racial” victory. But many progressives also want to see changes in the VRA—to strengthen its protections against contemporary barriers to the ballot. (The Tobin Project has published one proposal for streamlining the law). Tom Goldstein at SCOTUS Blog sees the ruling as “one paragraph in a larger conversation between the legislative and judicial branches over how to confront the modern legacy of the nation’s ugly history of racial discrimination in voting.” On TAPPED, Bruce Cain, a political science professor at UC-Berkeley, and Daniel Tokaji, an associate law professor at Ohio State, say the VRA was designed to confront straight-up denial of the vote—through tactics like literacy tests. But since then, voting access has been constrained on a more structural, insidious level—through practices such as discriminatory redistricting. Recent elections underscore how the VRA’s influence is slipping:

Since the 2000 election, the pendulum has swung back to vote denial. Confusing voting equipment, inaccurate registration lists, and onerous voter-identification rules were all revealed to be barriers to equal participation. Collectively, these practices can be thought of as a new form of vote denial. But the VRA has not kept pace with this change. Though effective in combating minority vote dilution, it has been remarkably ineffective in eliminating barriers to equal access.

Yale law professor Walter Dellinger explains that Congress has hedged around the VRA as well. A few years ago, amid ample evidence that some jurisdictions could escape oversight even if they had serious discrimination issues, lawmakers chose to sidestep a political minefield. As NYU law professor Richard H. Pildes writes, “from a political perspective, confronting these freighted issues of race, ethnicity, and politics in today’s era was all cost and no gain to Congress.” At Balkinization, Bruce Ackerman says that while the Supreme Court had a chance to strike down section 5, it instead deferred to lawmakers—and to the VRA’s unique legacy:

they recognized that the VRA isn’t a run-of-the-mill statute, but a landmark in our constitutional development. Chief Justice Roberts’ opinion makes no secret about the VRA’s landmark status, but my theory of constitutional moments, and its historical application to the VRA, helps excavate the sources of Robert’s (reluctant) recognition that there really is something special about section 5. It vindicates his sober second thoughts, and his surprising turnaround from the aggressive line he was taking at oral argument…. The Justices’ anxious hand-waving shouldn’t be taken too seriously. Assuming that Obama wins reelection, the liberal side will gain new vitality, and perhaps even a majority, by the time Section 5 comes up again.

If that narrative unfolds in the coming years, it will be a testament to the success of the Voting Rights Act in democratizing the electorate. The question now is whether the political system is mature enough to start a critical conversation about giving the law fresh life. However that debate plays out, the result will reflect how far we’ve come and how much farther we have to go. Image: "By the way, what’s the big word?" (Bill Mauldin / St. Louis Post-Dispatch, 1964)