If skepticism from the Supreme Court's conservative wing is any indication, a core provision of the Voting Rights Act of 1965 could be struck down this year. This should alarm anyone who views voting as a fundamental right and not, as Justice Scalia characterized it (to audible gasps), a "racial entitlement."
Section 5, the statute at the heart of Shelby County vs. Holder, requires areas with a history of voter discrimination to obtain federal approval before changing any election laws. The measure is considered one of the most successful anti-discrimination laws on the books and today remains key to combating voter suppression.
Yet during oral arguments last week, the high court's conservatives suggested that this critical voter protection tool has served it's purpose and now unjustly infringes upon the rights of states and municipalities; that, essentially, the law worked too well to continue. To this point, Chief Justice Roberts rhetorically asked whether "citizens of the South are more racist than citizens of the North."
Clearly, no region has a monopoly on discrimination. But the question the court should be asking is 'are minority voters still vulnerable to systemic disenfranchisement?'
The chief justice is right about one thing -- the trigger formula used to determine which states must be pre-cleared for election changes is narrow and outdated. Most would agree that the South of today is not the South of 1965. (Of course, that is due, in part, to laws like Section 5.)
But instead of killing Section 5, why don't we revive it for 21st Century?
As citizens from all corners of the country can attest, voter suppression is still a widely pervasive problem in national elections. Gone are the days of literacy tests and poll taxes -- instead, they've been swapped out for subtler hurdles like stringent Voter ID laws, strategic redistricting and deceptive poll practices that confuse and demotivate certain constituencies. As the NAACP Legal Defense Fund put it, these tactics are tantamount to 'pouring old poison into new bottles.'
But the upshot is the same.
Just last year, District Court judges invoked Section 5 to strike down sixteen proposed voting changes, from rigid ID laws in South Carolina to racial gerrymandering in Texas and rollbacks on early voting in Florida. In each case, the proposed legislation was found to disproportionately hurt African-American and Latino voters.
Sadly, suppressive legislation was not unique to 'covered' states. According to a breakdown by the Brennan Center for Justice, between 2011 and October of 2012:
•34 states introduced Voter ID laws
•17 states introduced proof of citizenship requirements
•16 states introduced legislation to limit voter registration
•9 states introduced bills to reduce early voting access
Despite public opposition, restrictive laws prevailed in more than a dozen states, impacting roughly three quarters of the electoral votes needed to win the presidency. Unsurprisingly, the statutes disproportionately impacted communities of color, as well as young, low-income and disabled constituents.
Yet many of the most discriminatory laws could have been thwarted by the Justice Department, had been under the jurisdiction of Section 5.
In scrutinizing the constitutional basis for this law, Justice Kennedy, who is likely to be the key vote on the issue, rightfully noted "times change." Yet, no matter how far we progress, there will always be groups that stand to gain by limiting access to the ballot box -- and the need to protect the integrity of the electoral process will continue in perpetuity.
If the Supreme Court strikes down Section 5 this year, as it appears it will, Congress will need to go back to the drawing board. This time, let's hope they take the opportunity to empower all voters, no matter where they're from.