BY STRIKING down a key section of the Voting Rights Act Tuesday, five justices of the US Supreme Court dealt a setback to fair elections in states with a documented history of racial discrimination. And in undoing this key protection of individual voting rights, they relied on a selective reading of the facts.
The section in dispute required nine states, plus a sprinkling of other counties and communities, to seek prior approval from the US Department of Justice for any changes to their election laws or apportionment plans. These jurisdictions were chosen via a formula indicating a record of suppressing black or Hispanic voter turnout, even through ostensibly neutral devices such as literacy tests. Five Supreme Court justices voted to invalidate that formula, on the grounds that it is outdated. Black voter registration and turnout rates, the majority points out, now rival those of white voters throughout much of the Deep South.
Yet lawmakers in many of those same states have shifted to subtler means of blunting the influence of nonwhite voters at the polls. And as dissenter Ruth Bader Ginsburg pointed out, the Voting Rights Act has thwarted any number of dubious schemes — such as leaving vacant legislative seats in black-majority areas unfilled, or abolishing municipal council districts in favor of at-large systems, or arbitrarily moving polling places out of minority neighborhoods.
It's true that the Voting Rights Act is nearly half a century old, and no one should presume that the existing law should be automatically extended into the indefinite future. But it hasn't been. Congress recognized that subjecting some states to greater scrutiny than others was an extraordinary step, so it has periodically reviewed and adjusted the law — most recently in 2006. The law already allows for the possibility that communities can change for the good; Congress built in provisions by which courts can release jurisdictions with good records from Justice Department scrutiny.
In its zeal to spare a small number of states a modicum of extra inconvenience when changing their election rules, the court majority fails to recognize what that scrutiny secures: fair elections. Rather than slamming the door entirely, the majority left open the possibility Congress could come up with new rules to determine which areas are subject to pre-approval by the Justice Department. Unfortunately, there are enough mechanisms to block progress in today's bitterly divided Congress that a new formula seems unlikely. But lawmakers reauthorized the Voting Rights Act by large margins in 2006, and a similarly resounding endorsement of the law is needed now.