Voting Rights Act’s time may be limited

States all over the country are bringing or joining lawsuits that claim the Voting Rights Act is unconstitutional. Against this backdrop, redistricting battles in states that are tinged with racial and ethnic overtones are beginning to spill into federal territory. There can no longer be any doubt: As the 2012 election season rolls around, the constitutional fate of the Voting Rights Act will have a considerable impact on the political playing field.

In the most dramatic episode thus far, Texas directly petitioned the Supreme Court this week to delay the implementation of a redistricting plan recently drawn up by three federal judges for temporary use as election season begins. The latest federal Census shows a sharp growth in Texas’s Hispanic population, thus making the redistricting politics there especially contentious.

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Activists for minority voting rights view the Voting Rights Act as the only meaningful defense against political majorities in states that might not necessarily have the representational interests of minorities in mind. With new Census data in place and the intensely political, excessively partisan redistricting process in full swing around the country, the Voting Rights Act could be the only leverage many minority communities have, particularly in Republican-dominated states.

On the other hand, political majorities in states are entitled to proportional representation, and the states themselves ought to have the freedom to govern their own election procedures — such principles are, after all, part of the bedrock of our federalist democracy.

Today, even supporters of the Voting Rights Act acknowledge that the Supreme Court could well strike down the act’s most efficacious — and controversial — provision, the preclearance requirement, possibly even before the next election season rolls around. Indeed, politicos hailing from both the left and right are beginning to recognize an inexorable reality: The Voting Rights Act has become unconstitutional, and it is only a matter of time before the Supreme Court makes that official. 

The triumph of the 15th Amendment’s ratification after the Civil War — empowering Congress to pass federal legislation (like the Voting Rights Act) to protect the voting rights of racial minorities — was followed by a century of utter failure. Southern states institutionalized mechanisms specifically designed to prevent blacks from registering to vote. One 19th-century senator from South Carolina, Ben Tillman, famously proclaimed to his constituents that “the only thing we can do as patriots and as statesmen is to take from the ignorant blacks every ballot that we can under the law.”

By the 1960s, voter discrimination against blacks in the South was so pervasive that civil rights activists could not even engage in peaceful demonstrations demanding their right to vote without facing wraths of violence from local police or state troopers.

Fed up, Congress enacted the Voting Rights Act in 1965, which gave the federal government unprecedented oversight and enforcement powers over the states’ local election procedures. While the act outlawed the discriminatory voter registration practices that had been in place for almost 100 years, it also did something no other law in the history of the United States had ever done before: it required every state and political subdivision targeted by the act to obtain permission from the federal government before any change to local election procedures could take place — the “preclearance” requirement.

Almost immediately, in the famous 1966 case of South Carolina v. Katzenbach, the constitutionality of the Voting Rights Act was challenged on federalism grounds. The act, South Carolina argued, was an unprecedented federal encroachment into state sovereignty. 

In an 8-1 opinion, the Supreme Court upheld the act as constitutional, acknowledging that the law “may have been an uncommon exercise of congressional power,” but explained that the “constitutional propriety of the Voting Rights Act of 1965 must be judged with reference to the historical experience which it reflects.” 

Thus, the court adopted a historically-sensitive approach, holding that “[e]xceptional circumstances can justify legislative measures [such as the Voting Rights Act] not otherwise appropriate.”

In 2009, with the insidious and overtly racist ideologies that were once deeply embedded in mainstream institutions largely if not entirely absent from government, the Supreme Court strongly hinted that the Voting Rights Act, as written, might be outdated as a constitutionally sound method of protecting minority rights in the electoral process. 

The extreme historical circumstances that persuaded the Supreme Court to uphold the act are no longer the case — a social reality that is almost certain to have partisans on all sides of the redistricting struggles up in arms this election cycle. If the Voting Rights Act is no longer constitutional, states and political majorities will cry foul play in the redistricting process, because that means their rights are being unduly encroached. Meanwhile, minorities could lose the only meaningful power they have to ensure that they secure representation in the political process.

With the support of the courts for the Voting Rights Act likely on the way out, Congress must find an updated constitutional way to balance the fundamental structural requirements of federalism and majoritarian politics with the deeply important protection minorities deserve from political majorities under our constitution. 

Tsontakis is an election law attorney based in Phoenix. He is also associate faculty at the University of Phoenix, where he teaches history of the U.S. Constitution.