By EDWARD BLUM
Jim Crow is not hibernating in the deep South, let alone in the Bronx.
Three years ago, in the widely watched case Northwest Austin Municipal Utility District Number One v. Holder, the U.S. Supreme Court did something that many court observers found astonishing: It gave Congress an opportunity to, in effect, do over some provisions of the Voting Rights Act it reauthorized in 2006. The decision was 8-1. Congress and the Obama administration ignored the justices’ suggestion. Now a new case about the same provisions is back before the court.
On Feb. 27, the justices will hear oral arguments in Shelby County, Ala. v. Eric Holder. Most court watchers anticipate a more definitive ruling than three years ago in Northwest Austin—either striking down or upholding Sections 4(b) and 5 of the Act. Many believe both provisions are in serious trouble. If they are struck down, the justices will validate what most Americans already recognize—that minorities in the deep South have the same opportunities to participate in elections as they do in the rest of the nation.
The Voting Rights Act of 1965 was born from the blood that was shed by African-Americans in the deep South in their attempt to register to vote and participate in elections. President Johnson and Congress deemed the disenfranchisement of blacks to be a national emergency. They were correct.
The legislation they produced—which passed both houses of Congress by massive, bipartisan majorities—proved to be one of the most effective of the 20th century. Although parts of the statute apply to the entire nation and are permanent, the power of the legislation was Section 5.
This was a provision—described as a temporary measure—that required specific states and counties to submit all election-related changes in their statutes and procedures—from redistricting to changing voting hours, and even for school board elections—to the U.S. attorney general or a panel of judges in Washington, D.C., for approval before the changes could go into effect.
The jurisdictions that had to submit their changes for “preclearance” were established by criteria in Section 4: any state or county that used a voting test or device such as a literacy test on Nov. 1, 1964, and in which less than 50% of the voting-age population was registered to vote, was swept into federal oversight. Most of the deep South was covered.
Given the long history of official chicanery in the South, these provisions, although draconian, were considered necessary to allow blacks to gain the franchise. By every measure, the Voting Rights Act ended black disenfranchisement in the South and elsewhere within a remarkably short time—dramatically narrowing the registration-rate gaps by 1975.
Section 5, however, was originally set to expire after five years. The framers of the act understood that they were on shaky legal ground here. After all, shifting procedural control of elections from the states to the federal government was an unprecedented extension of federal authority.
Yet Section 5 has proved to be anything but temporary. Congress has renewed it four times. It is now scheduled to expire in 2031. Furthermore, in 1975, Section 5 was amended so that it would apply not only to blacks in the South but to minorities such as Hispanics—and in an expanded list of states, including all of Texas, Arizona and Alaska, areas of states such as Florida, New Hampshire and California, and in the New York boroughs of Manhattan, Brooklyn and the Bronx, among other jurisdictions.
In Northwest Austin v. Holder, the Supreme Court noted that African-Americans and Hispanics in most of these states now register to vote and participate in elections at rates equal to, or greater than, whites.
“The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance,” the court wrote. “The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.” By granting the utility district’s request that it be allowed to bail out of coverage, the court avoided a decision on the bigger question of Section 5’s constitutionality.
Now the Voting Rights Act is once again at issue before the court. In 2010, Shelby County, Ala., sued in federal court, arguing that Sections 4(b) and 5 of the Voting Rights Act as amended in 2006 are unconstitutional because Congress failed to modernize the bill in light of the remarkable changes in the covered states during the last 40 years. The emergency that existed in 1965 is over.
It is a compelling argument. Congress reauthorized these provisions in 2006 based upon the black-voter disenfranchisement in the deep South that existed in 1965, but those conditions measurably don’t exist anymore. Furthermore, Congress made no effort to analyze minority electoral conditions outside of the covered jurisdictions. It makes no sense today for Texas and Alabama, but not Arkansas or Kentucky, to be supervised by the federal government.
Congress knew that Jim Crow was not hibernating in the deep South, let alone in the Bronx. This was apparent to election-law experts on the right and on the left who testified before Congress that the evidence in the congressional record did not address the differences in covered and non-covered jurisdictions, e.g., that voter-registration rates are higher among minorities in covered states than in states not under federal supervision. Congress did not base the original formula in 1965 on election data from the 1924 election, experts argued, so it made no sense to rely on data from 1964 to reauthorize the act in 2006.
These provisions are stuck in a time warp, rendering them unconstitutional. Our system of government requires that federal laws should be one-size-fits-all, but that all 50 states are entitled to equal sovereignty.
Congress and the administration could have avoided this litigation by updating the coverage formula or strengthening existing election laws that apply to the entire nation. Their failure to acknowledge the remarkable racial progress made by the deep South and elsewhere by modernizing the statute means that the Supreme Court may well strike down these sections of the law, as it should.
Mr. Blum, a visiting fellow at the American Enterprise Institute, is director of the Project on Fair Representation. A version of this article appeared on The Wall Street Journal.