Today, the U.S. Supreme Court announced its long-awaited ruling on the constitutionality of the Voting Rights Act of 1965. By a 5-4 vote, the Court struck down Section 4, the part that determines which states and jurisdictions must seek permission — or “preclearance” — from the federal government before changing their electoral laws. Section 4 applied to areas where fewer than 50 percent of minorities were registered to vote in 1972.
Writing for the majority, Chief Justice John Roberts explained that the Section 4 preclearance provisions were antiquated because they were based on data from over 40 years ago.
“Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions,” he wrote.
But, Roberts said, Congress is free to devise a preclearance formula suited to modern circumstances.
Because the rest of the Voting Rights Act remains in effect, individuals can still sue in federal court if they believe a local or state government is violating their voting rights. What the Court’s ruling does is shift the burden of proof from the states to the individuals alleging discrimination.
I know, I know — how dare a bunch of unelected judges require our elected federal officials to be responsive to current, real-world circumstances before selectively burdening local officials with cripplingly onerous regulations based on problems from half a century ago! The audacity!
Of course, a more or less bipartisan chorus of people has noted that it’s unlikely Congress will pass a new preclearance provision anytime soon.
I guess we’ll have to finally treat districts in the littoral South, New York City, New Hampshire, California, and other erstwhile preclearance zones like we do everywhere else in 21st-century America. What a revolutionary change.
But whatever your opinion of the need for preclearance, it should be noted that any reasonable defense of the standard ought to be based in modern considerations. By the same token that labor activists would object to a minimum wage and workplace protections based in mid-20th-century dynamics, every American committed to justice, fairness, and equality should oppose selective restrictions in 2013 based on conditions in 1972. Blacks voted in higher rates than whites in 2012 (despite the hullabaloo over voter ID laws), and I see no reason why my elected officials should have to waste incalculable human and financial resources answering for crimes they neither committed nor would tolerate.
I can understand the sentiment behind the objection that Congress will never pass another set of preclearance standards, and so Section 4 was the best that could be hoped for. However, the practical result of that sentiment is manifestly unjust. We cannot tolerate unfair and unconstitutional governance simply because some of us like how the results of that legislation make us feel. Thus we cannot expect or allow the Supreme Court to play the caped vigilante overwhelming any and all legal restrictions whenever our duly empowered officials upset us.
As Chief Justice Roberts sagely mused in upholding (most of) Obamacare:
Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
Personally, I don’t buy the recurring trope that either the South or the Republican Party is particularly racist. But if either is true, it should be easy enough to prove and then enact modern laws addressing the problem. After all, Congress did overwhelmingly reauthorize the Voting Rights Act in 2006.
If you’re unsatisfied with how your elected officials behave, then change your officials. If you disdain how your neighbors’ officials behave, then persuade your neighbors to change their minds and then their officials. If you’re unwilling or unable to do any of these things, then I would kindly suggest finding a new set of battles to fight or else abandoning the whole sphere of politics.
Anthony Rek LeCounte is a Yale-educated conservative. He blogs at Token Dissonance.