In Defense of Voting Rights
May 22, 2012, 2:00am

The New York Times.

Racial discrimination in voting is “one of the gravest evils that Congress can seek to redress,” Judge David Tatel wrote in a crucial ruling on Friday upholding the constitutionality of the Voting Rights Act.

In extending the law in 2006, Congress did just that, after reviewing racial bias in the nine states and parts of several others that have deep histories of discrimination. These “covered jurisdictions” had long been required by Section 5 of the law to get permission from the Justice Department or a federal court before making any changes to their voting rules. Congress found that discriminatory practices were still persistent and pervasive in those jurisdictions, and that the preclearance requirement remained necessary.

In his 2-to-1 majority opinion for the United States Court of Appeals for the District of Columbia, Judge Tatel explained that Congress’s judgment, supported by a legislative record of more than 15,000 pages and 22 hearings, “deserves judicial deference” because of the weight of the evidence. The ruling upheld a forceful decision by a federal district judge that reached the same conclusion in 2011.

The case, Shelby County, Ala. v. Holder, has great significance because in 2009, by a vote of 8 to 1, the Supreme Court said there were “serious constitutional questions” about whether Section 5 met a current need. Chief Justice John Roberts Jr., writing for the majority, left some legal experts with the impression that the court had come close to striking down Section 5, which, fortunately, it did not do.

A dissent in the Alabama ruling argues that Section 5 is no longer constitutional because it is not “congruent and proportional” to the problem it aims to solve. But the thoroughness of Judge Tatel’s opinion dispels that idea. The majority found that voting rights discrimination is heavily concentrated in covered jurisdictions, and that overt discrimination persists in those places despite decades of Section 5 preclearance.

Since 2009, there has been a wave of regressive voting measures across the country. No one seriously argues that “the blight of racial discrimination in voting,” as the Supreme Court once called it, has been halted.

With a 98-to-0 vote in the Senate and a vote of 390 to 33 in the House, Congress concluded that the work of Section 5 is not yet done. The appellate court has powerfully and persuasively affirmed that conclusion.