The court was right

The Voting Rights Act was outdated but now Congress needs to act

The Supreme Court in large measure got it right when it struck down portions of the Voting Rights Act. I know; thinking this makes me an awful person. But the underlying facts justifying the law’s toughest and most controversial measures are now almost 40 years old. Some states that were bad actors back then are no longer. Other states have changed and now deserve more scrutiny. And while it was discrimination against black voters that motivated the law in the first place, today’s worry, perhaps even more so, is discrimination against brown. The solution is simple: Congress needs to update the law to reflect today’s realities.

Ah, but there’s the rub. Congress can’t or won’t, runs the conventional wisdom. It’s broken. The Supreme Court should have recognized that and somehow either given a pass to a bad law or re-written it to keep it alive. And indeed, maybe it should have. But it’s a dangerous step, one that too quickly gives up on our ability to govern ourselves and one that too easily hands decision-making over to an unelected body of nine. Dictatorships, even benevolent ones, are scary propositions.

The Voting Rights Act was passed in the wake of John F. Kennedy’s assassination, pushed through in large measure by the legislative genius of Lyndon Johnson. One section was uniquely provocative: It subjected some states and a few counties to particularly tough scrutiny — called “preclearance” — if they wanted to make any changes to their voting rules. Even slight measures — moving a voting location, for instance — had to be submitted to federal authorities for approval. Moreover, the onus was on the jurisdiction to prove that the change wouldn’t affect voters on the basis of their race, color, or language. The list of “covered jurisdictions” was first drawn up in 1965. It was modified in 1970 and then again in 1975. Congress extended the law for 25 years in 1982, but didn’t change the list. The same thing happened again in 2006. So by the time the case challenging the law got to the Supreme Court, it had been 38 years since anyone had really thought about who should be precleared or not.

Preclearance is kind of a scarlet letter that proclaims one a bigot. Back in 1975, the nine states named — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia — likely deserved to be shamed. So too did the handful of other areas (ranging from the Bronx to parts of Florida to three counties in California). But are all of those jurisdictions bad today? Probably not, and that, as Chief Justice Roberts pointed out in his majority opinion, is the issue; “the Act imposes current burdens and must be justified by current needs.”

So why didn’t Congress update the list of covered jurisdictions when it renewed the Voting Rights Act in 1982 and 2006? Because, to be blunt, it didn’t have the political will to do so. Cutting one state or county from the list would have provoked cries from others that they too deserved to be dropped. And adding in new areas would have been equally controversial. No one wanted the scarlet letter.

So, as it often does, Congress punted, renewing the law without revising the list. It was the easiest thing to do. Unfortunately, it was also the wrong thing to do.

“Congress may draft another formula based on current conditions,” Roberts wrote in his decision, and then everything would be all right. Can that be done? Most of the commentary following the decision says no, but I think we give up too easily. Perhaps preclearance should be applied to all 50 states, making everyone equally subject to the scarlet letter. Or perhaps a simple, self-working formula could be developed for who gets preclearance or not. Disparities in voting rates between whites and minorities of, say, 10 percent, would automatically require preclearance for a county. Bring voting rates up, and preclearance would go away.

In a sense, as it does with many other laws that it finds unconstitutional, the Supreme Court handed the issue back to Congress with a simple admonishment: Fix it. And in our republic, it is — and should be — Congress, not the Court, that bears that responsibility.

This column originally appeared in The Boston Sunday Globe on June 30, 2013.