What’s to Become of the Voting Rights Act?

First, the background: The Voting Rights Act of 1965 is unquestionably landmark legislation which addresses discrimination in voting, in large part, against African Americans in the U.S.

Under the law, the Justice Department is required to “pre-clear” changes to election laws in some or all parts of sixteen states. Said states are for the most part, in the South, due to their history of discriminating against black voters.


Recently, the Justice Department used that requirement to block a voter I.D. law in South Carolina, saying it would curtail the turnout of minority voters. In response to this action, the state of South Carolina filed a federal suit to challenge that decision. As well, Texas has requested the Supreme Court rule on the state's redistricting plan. Shelby County, Alabama recently lost a ruling in federal district court regarding a challenge of the law.

What each of these instances have in common is that it's a generally accepted belief that the election process no longer discriminates against minority voters. Taken together, it might mean the constitutionality of the Voting Rights Act could come under the scrutiny of the Supreme Court.

According to the recent npr.org article, “Is The Voting Rights Act Endangered? A Legal Primer”, several legal scholars disagree – they feel minority voters still very much are in need of the protection afforded by the Voting Rights Act.

In the article, Mark Tushnet, a professor at Harvard Law School; Kareem U. Crayton, a professor at the University of North Carolina School of Law; and Michael J. Pitts, a professor at the Indiana University School of Law, were interviewed, and asked their opinions on five major issues regarding the Voting Rights Act.

The issues deal with why the legislation was currently coming under legal fire, and why people feel the need to fix something that seemingly isn't broken, as it has clearly been successful. As well, minority voters' participation was at an all time high in 2008; therefore, the question was posed – do minority voters really need continued protection under the law? Given that the Supreme Court would hear the case, would the current conservative makeup of the justices lend strength to the argument that the law would be overturned? Finally, if the law would be overturned, what would the impact be on elections around the country?

So, to address each of these issues, one by one; why now? Undoubtedly, all of this controversy is coming to the forefront as the presidential election nears. However, those interviewed had several opinions unrelated to this fact. Tushnet was of the mind that conservative Republicans had been clamoring that the law was unconstitutional for some time. As well, the suits against the law tend to coincide with the conservative makeup of the Court, he felt. Too, in 2009, a major Supreme Court ruling strongly implied that the law might not be constitutional any longer; per the article, Chief Justice John Roberts wrote: “In part due to the success of that legislation, we are now a very different Nation”, and that ongoing enforcement “must be justified by current needs.”

Flaws of the law – those opposed to the law argue it is applicable only in certain jurisdictions, versus the entire nation. The argument becomes, if there's need for protection in South Carolina, for example, there's most likely a need for protection in Pennsylvania. And, to quote Tushnet: “…it seems inappropriate to think there is pervasive prejudice against minorities in a nation that has elected a minority president.”

On the other hand, there may be issues in select jurisdictions, which is not evident by looking at overall, increased minority voter turnout . Seemingly sealing that point of view is the fact that Congress voted just six short years ago to extend the Voting Rights Act for another 25 years.

What about the current justices sitting on the Supreme Court? Per Pitt, perhaps the fact that congressional support was so strong in 2006 makes it a moot point. And, there's the fact that the Voting Rights Act was, undoubtedly, one of the major achievements of the civil rights movement – would overturning it, at any time, amount to political suicide?

Overturning the legislation would have far reaching legal and political effects, without a doubt. Tushnet is of the mind that minority voter participation might decrease in rural areas; as well more states might adopt voter I.D. laws. But would the country backslide into the voting climate that led to the law in the first place? He says ‘No', “…because there's enough political power in the African-American community to keep things from getting too bad.”