by Mitch Kokai
Senior Political Analyst, John Locke Foundation
John Fund devotes his latest National Review Online column to the future of a provision within the Voting Rights Act that has forced North Carolina and other states to take race into account when designing election maps.
Liberal groups may very soon see a provision of the Voting Rights Act they cherish and exploit declared unconstitutional because they would not listen to the Supreme Court’s warning about its deficiencies.
Instead, they engaged in a reactionary defense of a sweeping federal power that badly needed updating and retooling. Now they may lose it all, if Wednesday’s hearing before the Supreme Court on Shelby County v. Holder, a challenge to Section 5 of the Voting Rights Act, provides any clues.
In 2009, the Supreme Court came close to invalidating Section 5, which forces nine — mostly Southern — states along with some cities and counties to seek permission, or “pre-clearance” from the federal government before making any changes in their election laws. “Whether conditions continue to justify such legislation is a difficult constitutional question,” Chief Justice John Roberts wrote in a narrowly decided opinion handed down by the Court that left Section 5 still standing. He noted that the data used to decide which jurisdictions were covered by the VRA hadn’t been updated since 1972. The handwriting on the Court’s wall was clear — racial conditions in the covered states had dramatically changed, but Congress had done nothing to alter which jurisdictions should be covered. Absent change, the law was vulnerable to being found unconstitutional.
Given that Congress was controlled by liberal Democrats in 2009 and 2010, liberal voting-rights groups could have asked it to adjust the law by, say, making it easier for covered jurisdictions to “bail-out” of the law or changing the standards by which coverage was determined. Instead, they chose to roll the dice and hope the Court would continue to let Section 5 stand.