A Texas challenge to the Voting Rights Act

In one of those seemingly technical cases that in fact have tremendous social significance, a tiny utility district in Austin, Texas, last week persuaded the U.S. Supreme Court to hear its argument for invalidating a critical piece of the 4-decades-old Voting Rights Act.

At issue is Section 5 of the act, which requires certain parts of the country with a history of flagrant voting discrimination to clear any changes in election practices or voting rules in advance with the Justice Department or a federal court. It sounds mundane, but the effect of this “pre-clearance” provision has been enormous. Today, nine states, dozens of counties and hundreds of cities, towns and smaller political units can’t so much as move a polling place down the street without getting permission first. When it was originally passed in 1965, all of Alabama, South Carolina, Mississippi, Louisiana, Virginia and Georgia were covered under the section. Later other areas were added, including four California counties -- Kings, Merced, Monterey and Yuba.

Not surprisingly, many of those covered by Section 5 have chafed under the law’s requirements. The Northwest Austin Municipal Utility District argues that it has no history of voting-related discrimination yet has been stuck for decades under this “uniquely intrusive” law. Nor has it been allowed to remove itself from the list under the existing “bailout” provisions. Austin is covered, not because of anything it’s done but because all of Texas is covered -- and Texas is covered because of bad behavior that dates back decades. There is no justification for such an unconstitutional overreach, the district maintains.

On its face, the district’s central argument is about the proper limitations of federal power. But on another level, it is part of a broader battle between liberals and conservatives over the status of America’s long struggle with racism. A subtext of the argument is that so much progress has been made in America since the 1960s that it is now time to put such pesky anti-discrimination remedies as Section 5 behind us.

“The America that has elected Barack Obama as its first African American president is far different than when Section 5 was first enacted in 1965,” write the lawyers for the district, pointing to “deep-rooted societal change” that has transformed the country. Variations of this argument have been around for a while. Affirmative-action opponents have argued that racial progress has made racial preferences unnecessary. Abigail Thernstrom of the Manhattan Institute made similar points in The Times’ Opinion pages in an article titled “The voting rights battle is over. We all won.” Shelby Steele of the Hoover Institution touched on it in these pages when he discussed “the death of white supremacy.”

The idea is that in the new, improved, post-racial America, racism is becoming a thing of the past, inequities are being remedied, gaps are closing -- and we can finally do away with affirmative action and other race-conscious remedies that have made us so uncomfortable for so many years. Then we can all get back to the simpler business of equal justice and equal rights.

It’s pretty to think so, but this page isn’t buying it. Yes, there’s been great progress. We’re pleased that the black middle class has grown, that Jim Crow has been wiped out, that the merits of diversity are widely recognized. We realize that in 1940, 60% of all employed black women were in domestic service -- compared with 2% today. We’re aware that interracial marriage is leading to a “beiging” of America, and that today’s minorities are rapidly becoming the majority in many communities.

But that doesn’t mean our problems are over. In the United States today, blacks and Latinos are more segregated in school than they’ve been in 40 years, according to UCLA’s Civil Rights Project. The black male unemployment rate remains twice that of the white male rate. Only 8.2% of non-Latino whites lived in poverty in the U.S. in 2007, compared with 21.5% of Latinos and 24.5% of blacks.

There’s still voting discrimination too. Before extending Section 5 in 2006, Congress held 22 hearings and finally concluded that “despite the progress made by minorities [under the Voting Rights Act], the evidence before Congress reveals that 40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard.” Congress also found that Section 5 had been effective at addressing the problem.

Could it be improved? Of course. We have no objection to a discussion about whether the “bail out” provision should be made less restrictive. We don’t believe that a jurisdiction should be stuck on the list forever. But nor do we believe that the time has come to tear out the heart of the Voting Rights Act. We’re a better country than we once were, but we have a long way to go.