Last week, the Supreme Court of the United States heard oral arguments in the case of Shelby County, Alabama vs. Holder. The case concerns Section 5 of the Voting Rights Act of 1965, which stipulates that particular areas of the country that do not meet a certain threshold for minority participation or have a history of government sanctioned racism must receive “preclearance” from the federal government before they alter their voting laws or procedures. The conservative wing of the court, with Chief Justice John Roberts and Antonin Scalia in the lead, appear ready to strike down Section 5 — and rightly so. Although Section 5 of the VRA might have been necessary back in 1965, it has no place in modern American law and no role to play in our society any longer.
While progressives and liberals manage not to see it, the United States of today is a much more tolerant — and more importantly for our purposes, less racist — place than the United States of 60 years ago. This is particularly true in the American South, which is tied with the Southwest for the region with the greatest number of minority governors (the SW has two Hispanic governors, the South two Indian-Americans, all of whom are Republicans), currently the only area of the country to send an African-American to the U.S. Senate (South Carolina’s Tim Scott, another GOP-er), and the division of the country from which two out of three Hispanic U.S. Senators hail (Cuban-Americans Ted Cruz of Texas and Marco Rubio of Florida, also both Republicans). Furthermore, as Chief Justice Roberts pointed out during his questioning of Solicitor General Verrilli, participation in the electoral process is actually appreciably greater in every southern state than in the oh-so-enlightened commonwealth of Massachusetts, perhaps the greatest liberal bastion of the Northeast.
These facts not only prompted the Chief Justice to ask a rather straightforward and sarcastic question, (“Is it the government’s submission that citizens of the South are more racist than the citizens of the North?”) they also highlight how arbitrary it is for the federal government to still be enforcing Section 5 in the South. Section 5 is not only burdensome in that it forces the jurisdictions to which it applies to wade through an endless amount of federal bureaucracy every time they want to relocate a voting booth, but it also has the perverse effect of creating congressional districts dominated by one minority group. Like it or not, this does — as Justice Scalia bluntly pointed out — lead to the “perpetuation of racial entitlement” whereby minority groups feel entitled to always have someone of their own race represent them. One need only look to the controversy over Rep. Steve Cohen’s (white, Jewish) replacement of Harold Ford (African-American) in Memphis six years ago or Joseph Cao’s defeat of William Jefferson in New Orleans in 2008 to see that.
Finally, one must question how realistic the standards of the Voting Rights Act truly are. In a country where turnout over 50 percent among the entire voting age population is excellent because it’s so rare, how can one reasonably force certain areas of the country to somehow ensure that 50 percent of a given population turns out in order for them not to be slapped with Section 5 restrictions? Let us not mistake typical American apathy for racism lest we all be called segregationists.
Our country is dramatically different than it was a half-century ago. It is time for us to recognize that Section 5 of the Voting Rights Act has extended beyond its usefulness and is now even arguably harmful to our electoral system.
Jeffrey Robin: Somebody has to send the notifications when government needs a software update.
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This article appeared online only at dailynexus.com on March 5, 2013.