Much has changed in America since the Voting Rights Act of 1965 was first approved, and we can't blame those living in the 16 states that must get approval from the Justice Department or a federal court in order to revise their election laws for feeling the weight of history. The Deep South of the 21st century is not the same as the days of poll taxes, literacy tests and assassinated civil rights leaders.
But how different is it today from seven years ago? That's when Congress last renewed one of this country's most important pieces of civil rights legislation — including the section that places this burden of proof on states with long histories of suppressing minority voters. It wasn't even close, nor was it partisan. The House and Senate voted 390 to 33 and 98 to 0, respectively, to extend the law by another 25 years, the fourth extension since 1965.
More than anything else, that fact should weigh heavily as the Supreme Court on Wednesday considers the case brought by Shelby County, Ala., where officials regard the pre-clearance requirement as an unconstitutional burden. Courts have upheld the Voting Rights Act numerous times over the years (including in the Shelby case), so surely such an argument must turn on the claim that the basic patterns of life in places like Alabama have changed completely. Yet couldn't the Congress of 2006 somehow have picked up on that?
Perhaps that's because the reality is not quite so rosy. Yes, you may not find lynch mobs patrolling the streets, but the desire to suppress the minority vote seems to still burn brightly in many of these states. That was evident in the last election cycle after numerous jurisdictions — admittedly, including some not covered by the pre-clearance requirement in Section 5 of the act, like Ohio and Pennsylvania — adopted elaborate state-issued photo ID requirements that seemed designed not to address fraud (of which there is virtually no evidence) but to prevent some — the poor, minorities and the elderly in particular — from casting a vote.
That some states are targeted and some are not relates to their histories. It's not unequal treatment if there are historic voting patterns to back up the assertion that some states are more prone to racial discrimination than others. This represents a reasonable rationale for requiring those states to bear the burden of proof in matters of election law. It would be one thing if the Justice Department had found no opportunities to exercise this authority in recent years, but that is clearly not the case.
Last year alone, Section 5 was invoked to block photo ID laws in two of the 16 states. It was also used to reject a Texas redistricting plan judged to be discriminatory against Latino voters. That strongly suggests that voter suppression is no rarity.
Indeed, the Justice Department has used Section 5 thousands of times over the years to reject changes to voting law that would discriminate against minorities. Photo ID laws are just the latest example. There have been efforts to rewrite district lines, registration procedures and other rules that would have had the practical effect of reducing minority participation.
Shouldn't this be an easy call for a Supreme Court? It certainly has been for lower courts, and it would require a truly activist judge to overturn a measure that had such a long history and such overwhelming support by Congress. But some conservative justices have shown sympathy toward this argument in the past, including Chief Justice John G. Roberts Jr., who wrote four years ago that Section 5 raised "serious constitutional questions."
Perhaps the day will come when such a law is wholly unnecessary anywhere in the United States, but that time has not yet arrived. If anything, recent events suggest Section 5 should have a broader application, but that, too, is a matter for Congress. It shouldn't be the job of the nation's highest court to roll back the rights of minority voters, whether in Shelby County or anywhere else. States that don't discriminate in matters of election law have little to fear from enforcement of the Voting Rights Act. Those that do shouldn't have the Supreme Court on their side.