The right to vote, updated

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Guy-Uriel E. Charles is a professor at Duke University School of Law. Luis Fuentes-Rohwer is a professor at the Indiana University Maurer School of Law.

Judging from their questions during recent oral arguments, the five conservative justices on the U.S. Supreme Court may be ready to strike down Section 5 of the Voting Rights Act, a key provision that helped stop the widespread disenfranchisement of African American and other minority voters when it was enacted in 1965. The prospect that the landmark statute might be ruled unconstitutional by the Supreme Court is causing as much angst in liberal circles as it is anticipatory glee in conservative ones.

But liberals should not be so worried. Although it is politically incorrect to say, and it pains us as good liberals to admit it, the court’s striking down of Section 5 would actually help move voting rights policy into the 21st century.

Conservatives likewise should not be so pleased with themselves. If the court declares Section 5 unconstitutional in Northwest Austin Municipal Utility District No. 1 vs. Holder, it would be one of the greatest exercises of judicial activism of our generation.


The Voting Rights Act was passed to address the many formal and informal mechanisms used by officials and the white electorate, particularly in the South, to prevent black citizens from voting: violence, intimidation, fraud, gerrymandering, poll taxes, literacy tests, whites-only party primaries, discriminatory enforcement of registration laws, property requirements and more.

Section 5, intended as a temporary fix, required that any changes in voting procedures get advance clearance from either the Department of Justice or the U.S. District Court for the District of Columbia. It targeted the worst state and regional offenders in 1965: Alabama, Georgia, Louisiana, Mississippi, parts of North Carolina, South Carolina and Virginia. Congress later added other jurisdictions, including Arizona, Texas and a few counties in Florida, to the list covered by Section 5.

The 1965 Voting Rights Act was a game-changer. The immense registration gap between black and white voters (20% versus 70% in Alabama in 1965) was noticeably reduced within five years. Today, the jurisdictions targeted by Section 5 are much improved, and most voting rights challenges arise in jurisdictions that aren’t covered. For example, in the last two presidential elections, there were voting problems in Ohio and parts of Florida not covered by the act.

The world today is a far different place from what it was in 1965, as the conservative justices pointed out during the oral arguments. Federal oversight of certain state voting practices may no longer be justifiable. The small Texas municipal district under Section 5 jurisdiction is contesting whether Congress had the power under the U.S. Constitution to reauthorize Section 5 in 2006.

We believe that Congress should have reauthorized the act in 2006 -- but should have modernized it as well. Instead, it avoided that politically unpalatable task and, at the urging of the civil rights community, simply extended until 2031 the same “temporary” Section 5 provisions that were first enacted in 1965. Had Congress not acted, Section 5 would have expired in 2007.

If the high court now votes to invalidate the Voting Rights Act, Congress and the civil rights community would have an opportunity to engage in a much-needed debate on voting rights policy for a new century. Among the issues that could be debated are voter identification requirements and their potentially disparate racial impact, varying resources for voting machines and equipment, obstacles faced by Latinos in voting and political participation, and denial of the right to vote to thousands of ex-felons, many of whom are non-white.


But let’s be clear: Though striking down the Voting Rights Act might be good for the country, it also would be a radical move for the court. The power of Congress to protect the right of citizens to vote without racial discrimination is explicitly provided for in the Constitution, which cannot be said for the power of the courts to strike down federal statutes.

The fact that the self-described “strict constructionists” on the court would be the ones striking down this landmark statute reveals the poverty of the conservative argument against judicial activism. We are all judicial activists now and have always been so.

Nevertheless, the current Voting Rights Act is outdated. Liberals who reflexively defend the outmoded policy are as insensitive to the political rights of voters of color as their conservative counterparts who maintain, without evidence, that race no longer plays a role in the democratic process. If, however, the court’s “strict constructionists” strike down Section 5, we won’t shed any tears. And if you care about voting rights policy, you shouldn’t either. Political correctness be damned.