If Wednesday morning's oral arguments are any indication, the Supreme Court stands poised to require that a law written to protect the rights of black voters in the South be overhauled — even while the rest of the United States is riddled with uneven, unclear voting rules. The case has drawn the country's attention today back to a small part of a still messy, unseen, and ignored picture.
It's worth noting that the fundamental and inviolable right to vote, being neither, is regularly subject to government intervention. In 1965, that took the form of the Voting Rights Act, a bill that earned broad bipartisan support in banning voting requirements used in the recently desegregated South to limit black voting. Along with stopping grandfather clauses and poll taxes, the bill established that certain states (and counties within states) would for an indefinite period of time have any new electoral procedures reviewed ("precleared") by the Department of Justice to ensure that new efforts to curb the black vote couldn't take hold.
That indefinite period stipulation, in Section 5 of the bill, has for decades been criticized as having outlived its usefulness. This morning, the Supreme Court heard arguments in Shelby County v. Holder to decide whether or not the preclearance standard should be amended or dismissed — whether or not, in other words, these regions of the country could be trusted to run their own elections.
There seems to be reason to think that the Justices will decide they can. Tom Goldstein of the Supreme Court-focused site SCOTUSBlog wrote that "the vote seems quite likely to be five to four."
The more liberal members pressed both the narrow argument that an Alabama county was not a proper plaintiff because it inevitably would be covered and the broader argument that there was a sufficient record to justify the current formula.
The New York Times cites the words of the Justices to reach a similar conclusion.
Justice Antonin Scalia called the [Section 5] provision … a “perpetuation of racial entitlement.” Chief Justice John G. Roberts Jr. asked a skeptical question about whether people in the South are more racist than those in the North. Justice Anthony M. Kennedy asked how much longer Alabama must live “under the trusteeship of the United States government.”
The court’s more liberal members, citing data and history, said Congress remained entitled to make the judgment that the provision was still needed in the covered jurisdictions.
“It’s an old disease,” Justice Stephen G. Breyer said of efforts to thwart minority voting. “It’s gotten a lot better. A lot better. But it’s still there.”
Four of the nine-member court’s five more conservative members asked largely skeptical questions about the law. The fifth, Justice Clarence Thomas, did not ask a question, as is typical.
Bert Rein, the lead attorney for Shelby County, Alabama, which filed the suit, suggested that preclearance had once been necessary, and, in fact, had succeeded at reducing disparities between the races. From the National Journal:
Rein said that Congress, by renewing the formula covering Alabama in 2006, was improperly denying the state and county its own "equal dignity" and sovereignty to make its own voting decisions. Rein argued -- and several justices seemed to concur in their questioning -- that other states now have worse racial voting problems than Alabama, and that the formula is thus unfair and should be struck down.
Which brought Chief Justice Roberts to raise one of the day's more important points: Voter registration disparities between whites and blacks exist throughout the United States, and are actually at their worst in Massachusetts.
In fact, looking at a variety of measures of racial disparities and ability to vote, it's clear that — while problems still exist in the regions covered under Section 5 — problems are universal and of differing severities. We took a look at three measures — voter wait times, black vote turnout compared to the national average, and Pew Charitable Trust's elections performance index — and plotted them by state for the years 2008, 2010, and 2012 where data was available. The results show a picture of a nation with election efficiency that varies from state-to-state and election-to-election — in 2012, not 1964.
In the charts below, darker shades mean lower wait times, higher percentage of black turnout, better score on the election index. Click on the links below to toggle the map.
- 2008 African-American turnout relative to national average
- 2008 Length of time for all voters to vote
- 2008 Pew elections performance index
- 2010 African-American turnout relative to national average
- 2010 Pew elections performance index
- 2012 Length of time for all voters to vote
- Clear all
States fully or partially requiring preclearance for voting rules
2008 African-American turnout relative to national average
2008 Length of time for all voters to vote
2008 Pew elections performance index
2010 African-American turnout relative to national average
2010 Pew elections performance index
2012 Length of time for all voters to vote
In 1964, a key threat to American democracy was that institutional racism in the South limited the ability of blacks to cast a vote. Today, that specific problem seems clearly to have been lessened — though likely not eliminated. Instead, we now have a nation with laws varying county-by-county, affecting the ability of huge swaths of the population to vote and vote quickly. Addressing that isn't the domain of the Supreme Court — but Congress doesn't seem eager to tackle another high-profile defense of this key aspect of democracy.