So what happens next on voting rights?
The Supreme Court justices fell along predictable lines when they heard an argument over the constitutionality of a key section of the Voting Rights Act—its Section 5, which mandates that certain covered jurisdictions, mostly in the South, must get Justice Department approval before they may implement changes in their voting procedures.
Justice Antonin Scalia called the provision “a racial entitlement.” Justice Sonia Sotomayor facetiously asked if voting itself was an entitlement. Justice Elena Kagan said the current formula for determining who gets covered by Section 5 was working pretty well. Chief Justice John Roberts, who has led the charge to reconsider Section 5, asked if citizens in the South are more prejudiced than citizens elsewhere. The man in the middle, Justice Anthony Kennedy, hailed the Voting Rights Act and said Section 5 was fine in its time but likened it to the Marshall Plan as something that was dated.
I’d venture that the Court sends Congress back to tinker with the formula that determines which jurisdictions get covered by Section 5 rather than jettisoning Section 5 entirely. Chucking Section 5 entirely is possible, but Justice Roberts got eight justices on board for a 2009 opinion that made it easier for jurisdictions to “bail out” if they had a clean record of nondiscrimination. If he could find a way to get more than the Republican five, he'd have reason to take it—and this could be the way.
Unless the Court just upholds the law, which seems hard to imagine after Wednesday's oral arguments, they’re kicking it back to Congress, where its last renewal in 2006 passed with almost 400 votes in the House and 98 in the Senate before being signed by President George W. Bush.
This time there’s no consensus. Democrats will want to make as few changes to the act as they think they can get away with. It’s hard to see Republicans, with their Southern base, wanting to do much to revive the statute that makes their region an outlier.
Leaving aside sheer gridlock, there are two ways Congress could go if it is serious about responding to a court ruling. One is to modify Section 5 in ways to make it pass judicial muster. For instance, you could make it easier for jurisdictions to get out from under Section 5. Right now they need to go 10 years without an infraction. That would change. So would the definition of an infraction, which right now includes DOJ nixing any voting procedure or choosing on its own to dispatch observers. Congress would probably have to renew the act more often, say every five years—the original renewal period—rather than 25 years, which is what they did last time. Right now, state governments stay under the Section 5 regime even if they’ve committed no violations but jurisdictions within their state have committed violations. That can’t last.
There’s another way Congress could go. Try to come up with a new voting-rights bill that either ignores or addresses the Section 5 issues and handles modern issues like voter ID laws, poll hours, and other access issues in a national statute, as Richard H. Pildes outlines for Reuters. Democrats could use a conservative court ruling as a platform for trying to accomplish more liberal goals. It’s a long shot, and unlikely in the extreme, but it’s a big issue on the minds of Democrats. So, from Democrats' standpoint, why not try? It at least elevates the debate from a regional issue to a national one. If they go big, they’ll surely unite the GOP in opposition, putting the kibosh on a simple Section 5 fix.
A ruling curtailing the Voting Rights Act would leave President Obama in an interesting position. On one hand, he'll no doubt push for the most expansive interpretation of Section 5 that the Supreme Court might allow, just like most Democrats. But the president of the United States will be arguing, essentially, that the South is still a region apart and in need of special federal treatment. It’s one thing for the solicitor general to make that case, but when the president comes forward and declares that, it’s a big deal.
The Voting Rights Act hasn’t been a subject of great presidential rhetoric and attention since 1965, when LBJ used the attack on black civil-rights protesters in Selma, Ala., to pass the act. Who could argue that the South was a world apart then? Obama would be taking up a much different voting-rights cause at a much different time in American life, but still essentially arguing the same point: that the South needs to be treated differently than the rest of the country he leads.
(It’s worth noting that because of the odd exigencies of the Voting Rights Act, it covers Alaska and not Arkansas; parts of South Dakota, but none of Tennessee. But it’s primarily a statute aimed at the South.)
There’s always the possibility Congress can’t get it together, in which case Section 5 would be effectively done. The rest of the Voting Rights Act still stands no matter what. Its Section 2, banning discriminatory voting practices, is both nationwide and permanent, as are provisions about bilingual balloting.
Civil-rights groups say that without the special protections of Section 5, discriminatory actions will surge. That may or may not be true. Assuming it is, will there be a rousing public outcry? Will the country’s conscience be shaken by thorny matters, like whether to create two or three minority-majority seats on a city council, or whether a town’s annexation is discriminatory or not? Without sustained public interest, it’s easy to see voting rights languishing in Congress—just like everything else.
This article appears in the Feb. 28, 2013, edition of National Journal Daily.