Questions about the Voting Rights Act’s constitutionality have long been hanging in the air at the Supreme Court. But it was only earlier this month, in an order expanding a Louisiana redistricting case, that the justices placed the issue squarely on their docket.
Now that they have done so, with argument scheduled for Oct. 15, there is little doubt that what remains of the 1965 law following its evisceration in the Shelby County case 12 years ago will be seriously weakened, if not repudiated in its entirety by the time the court’s next term is over.
My point here is not to join the chorus predicting that tragic outcome. Rather, I’d like to pose the question: How did we get to this point? How can it be that a law enacted to eradicate racial discrimination in electoral opportunity, a crowning achievement of the civil rights era, may fall 60 years later to the argument that the law itself has come to be seen in some powerful quarters as an engine of racial discrimination?
Might the explanation for the law’s perilous state be that it has simply outlasted its usefulness, that the conditions that led Congress to enact it no longer exist sufficiently to justify the continual judicial scrutiny it imposes on state mapmakers? That was at the heart of the argument that Chief Justice John Roberts made in the Shelby County case, in which the court disabled the section of the law requiring that states with a history of voting discrimination obtain federal approval before making changes in their election laws. “Things have changed dramatically” in the South, the chief justice declared in his majority opinion, freeing those states from the reach of the law’s Section 5.
It was also the argument that Justice Brett Kavanaugh appeared to embrace two years ago, when he reluctantly concurred with a decision that required Alabama to draw a second congressional district with a Black majority. That case, like the Louisiana case, concerned the act’s Section 2, which seeks to assure that members of all groups have an equal opportunity to elect representatives of their choice.
The argument that the Voting Rights Act has outlived its usefulness is easily refuted by facts on the ground. The County Commission of Fayette County, Tenn., recently settled a Voting Rights Act suit brought by the N.A.A.C.P. Legal Defense Fund that challenged the county’s electoral system as racially discriminatory in violation of Section 2 and the Constitution. Despite a Black population in the county of more than 25 percent, the 19-member commission has no nonwhite members. The Legal Defense Fund dismissed its lawsuit after the commission drew a new districting plan with three majority-Black, single-member districts.
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The post Of Course the Voting Rights Act Would Die at This Moment appeared first on New York Times.
