Voting Rights sidestep

The Supreme Court, asked to reaffirm the legality of the Voting Rights Act (VRA) for the fourth time since 1966, last week decided to largely avoid the issue. But the Court, by an 8-1 vote, did acknowledge for the first time in a majority opinion serious questions about the fairness of the act's administration and the constitutionality of its most controversial provisions.

The sole dissent, by Justice Clarence Thomas, argued that the VRA should be overturned. There was no separate opinion defending the necessity of the act as currently written. Last week's decision was a sidestep.

A little painful history is in order. The VRA was first enacted in 1965 in response to the very active efforts of Southern states and their jurisdictions to exclude black voters in violation of the Fifteenth Amendment. In order to prevent legal maneuvering, it forbade any changes to electoral laws, boundaries and procedures in most Southern states without the prior approval of a federal court in the District of Columbia or the U.S. Attorney General.

As one Georgia politician put it, if you wanted to change the polling place in a voting district from the Methodist church to the Presbyterian church, it had to go through Washington.

South Carolina availed itself of its right to appeal directly to the Supreme Court. In a 1966 decision, the court upheld the VRA 8-1, with the sole dissent coming from liberal Justice Hugo Black, who said it made "any distinction drawn in the Constitution between state and federal power almost meaningless." The act was extended for 25 years in 2006 by near-unanimous votes in Congress.

The Court's recent decision, written by Chief Justice John Roberts, particularly questioned the act's use of 1972 data to define which jurisdictions must seek clearance from Washington for any changes in voting rules. "The Act imposes current burdens," it declared, "and must be justified by current needs."

The other major expression of the court's dissatisfaction was with the operation of the VRA's "bailout" mechanism. It broadened the definition of political subdivisions that can qualify to petition the courts to exempt them from pre-clearance, saying "all … are eligible." The court accused the Justice Department of adhering to a narrower definition in order to "render the bailout provision all but a nullity."

The decision authorizes the Northwest Austin Municipal Utility District in Texas to petition for a bailout. It is also an invitation to other jurisdictions to sue for relief from pre-clearance.

In its decision, the court found that blacks and whites are, for the most part, equally enfranchised and politically active throughout the areas covered by the act. The Justice Department objects to substantially less than 1 percent of all proposed voting changes.

The widespread and deep-seated political obstacles to the exercise of Fifteenth Amendment voting rights that the Voting Rights Act addressed are mostly vanquished. If the need for prior federal approval of state and local voting changes is not justified by actual, current conditions, as the Supreme Court has suggested, then the Constiution demands that it should be repealed by Congress or overruled the next time the Supreme Court considers a relevant case.