Discrimination isn’t dead

“The past is never dead,” the great Southern novelist William Faulkner once wrote. “It’s not even past.” Those words rang true recently as the U.S. Supreme Court heard an Alabama county’s challenge to the Voting Rights Act of 1965. If successful, it could turn back the clock on voting rights to the dark days of the Jim Crow South.

The Shelby County v. Holder case concerns Section 5 of the act, which ended generations of legalized voter discrimination by outlawing literacy tests, poll taxes and other measures used by states, mostly in the South, to disenfranchise nonwhite voters. Section 5 requires certain states—those with histories of discriminatory voter requirements—to receive preclearance from the Justice Department before enacting new laws that may impact voter access. The section is being challenged by officials from Shelby County, Alabama, who claim it is a relic of a bygone era of racial discrimination, an infringement of state sovereignty, and an unfair and unequal burden on the affected jurisdictions.

It would be nice to think that voter discrimination was a thing of the past, but the facts say otherwise. The Justice Department invoked Section 5 to stop potentially discriminatory new laws more than 1,000 times between 1982 and 2006, the year it was reauthorized by unanimous vote of the Senate and a 390-33 count in Congress. In the run-up to the 2012 election, Alabama, Mississippi, South Carolina, Tennessee, Texas, Georgia and Florida all passed new restrictions on voting, including photo ID requirements and citizenship checks, that were struck down under Section 5.

Moreover, there is no question of state sovereignty involved. The Constitution expressly grants Congress broad authority over states to regulate federal elections. (Don’t take our word for it: Read Article 1, Section 4, and the 14th and 15th amendments.) And there is nothing in the Constitution requiring Congress to treat all states equally in this regard—in fact, the 15th Amendment describes ways in which the former Confederate states were to be treated differently.

Case closed, right? Unfortunately not. As we know from recent decisions on issues including corporate campaign-contribution limits and gun control, the Republican-appointed justices have been only too willing to use their slim majority to overrule constitutional precedent—especially when it serves Republican priorities. Justice Antonin Scalia may have provided a chilling preview of where things are headed during oral arguments when he astonished observers by referring to the reauthorization of Section 5 by Congress as a “perpetuation of racial entitlement.”

Voting is not an entitlement to be granted or restricted by states at their whim. It is a right that must be ensured and protected by the federal government. Overturning Section 5, the principal means by which the Justice Department can enforce the Voting Rights Act, would be a disaster for the country, opening the door to rampant voter suppression and seriously undermining public faith in the Supreme Court’s ability to act in an unbiased, nonpartisan manner. We urge the justices to rise to the historical occasion, preserve the Voting Rights Act and help make voter discrimination truly a thing of the past.