The Bronx, New York (pop.1,332,650), Pinkham's Grant, New Hampshire (pop. zero), and Northwest Austin Municipal Utility District Number One (pop. 3,500) in Travis County, Texas share a special status under our nation's civil rights laws: All are covered by Section 5 of the landmark 1965 Voting Rights Act that was designed to end black disenfranchisement in the Deep South. On Wednesday, the Supreme Court will hear arguments to determine if this provision is still constitutional.
These three, far-flung jurisdictions--and thousands of others--are subject to Section 5 for one reason: When Congress reauthorized the law in 2006, it feared having a serious debate on the need to modernize our civil rights statutes and instead abdicated all political responsibility to the courts.
Shortly after President Bush signed the reauthorization, the Northwest Austin Municipal Utility District sued, arguing that unless it could "bail out" of Section 5, the provision was unconstitutional. If the Supreme Court strikes down Section 5, as it should, it will eventually force Congress to do what it should have done earlier--reassess the racial policies of a nation that has elected its first African American president.
Some background on the Voting Rights Act will be useful. Passed in 1965 as a "temporary" provision, Section 5 requires all jurisdictions in nine states (mostly in the Deep South and Texas and Arizona) and parts of seven others (from New Hampshire to California) to seek permission from the attorney general or the D.C. district court before making any change in voting procedures. Something as minor as moving a polling place across the street, or as major as a implementing a statewide congressional redistricting plan, must be "pre-cleared" by Washington.
When the Voting Rights Act was originally passed, this provision made sense--after all, the Jim Crow South had perfected a never-ending game of whack-a-mole to keep blacks from the polls. Preclearance ended that. Nevertheless, the law was unprecedented in our history. First, it applied to only a few parts country. Second, no other statute in our history has ever required a state or one of its jurisdictions to ask the federal government for approval before a locally enacted law can go into effect.
In 1965, Congress recognized that Section 5's pre-clearance provision was an unusual intrusion into areas constitutionally reserved for the states, so it designed it to expire after five years. However, it is still in effect today after three congressional extensions. It will next expire in 2031, sixty-one years later than originally intended.
Wednesday's case, Northwest Austin Municipal Utility District Number One v. Holder, forces the justices to address some complex questions, the most important of which is whether conditions for minority voters have improved enough in these targeted states and jurisdictions that Section 5 is no longer necessary. Judging from the congressional record, the Court may conclude exactly that.
The data proving remarkable changes in racial conditions in these jurisdictions are irrefutable: Criteria such as minority voter registration rates, election turnout, success of minority candidates, and other factors, indicate there is no meaningful and quantifiable difference in the voting rights exercised by minorities in the jurisdictions covered by Section 5 and non-covered jurisdictions. In fact, the evidence suggests that the covered jurisdictions offer greater opportunity for minorities to participate at the polls than non-covered ones. Congress knew this, but chose to ignore it. That's why Pinkham's Grant, New Hampshire, is still covered by Section 5 even though its population is zero.
As some election law scholars have noted, if Congress had reexamined Section 5's coverage formula (which is based partly on voter turnout in the 1964 contest between Barry Goldwater and Lyndon Johnson), the "coalition behind the law would have collapsed."
But Congress chose to avoid that political can of worms, which is why Northwest Austin Municipal Utility District Number One is still in the Voting Rights Act penalty box. This tiny enclave is a residential subdivision that was little more than bald ranchland until 1988, twenty-three years after the original enactment of the Voting Rights Act. Because it is in Texas, the district had to petition the federal government for permission to move the neighborhood polling place from a resident's garage to an elementary school a few blocks away. By subjecting the district to that burden, Congress treats racism as "an inheritance that runs with the land rather than a manifestation of attitudes and actions of living individuals."
Yet beyond the legal questions of contemporary discrimination and state sovereignty hovers a powerful political question--how voting districts are drawn to comply with Section 5. For the most part, Section 5 covers preclearance of all redistricting; and to the extent a change is retrogressive (dilutive) to the position of minorities, it covers that as well. As NYU professor Richard Pildes has noted, other than minority officeholders whose districts must be immunized from white competition, "the most significant partisan beneficiaries of the Act are Republicans, who gain from the Act's requirement that safe minority districts be created." With reliable minority Democratic voters clustered in gerrymandered minority districts, Republican challengers prevail as easily as their black and Hispanic Democratic counterparts. This "political apartheid" diminishes electoral competition.
As the municipal utility district argues to the Court, "The America that has elected Barack Obama as its first African-American president is far different than when the Voting Rights Act was first enacted in 1965." That Section 5 is stuck in a time warp that will last another two decades--punishing parts of the country for the sins of their grandfathers--ill serves our nation's remarkable racial evolution. Let's hope the Court agrees.
Edward Blum is a visiting fellow at AEI.