Campaign Stops: Does Obama's Re-election Doom the Voting Rights Act?

DOES the re-election of the first black president mean the Voting Rights Act of 1965 is unnecessary and perhaps unconstitutional? The Supreme Court's decision last week to consider a constitutional challenge to a key section of the act suggests that a perverse outcome of the 2012 campaign may be that President Obama's victory spells doom for the civil rights law most responsible for African-American enfranchisement.

The central question in the constitutional debate is whether times have changed enough in the nearly five decades since the act's passage to suggest that the law has outlived its usefulness. The unprecedented flexing of racial minorities' political muscle on Nov. 6 does make it clear how much times have changed. But a campaign marred by charges of voter suppression and Election Day mishaps also makes the need for federal protection of voting rights clearer than ever.

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The case before the court, coming out of Shelby County, Ala., concerns Section 5 of the act, which requires some states and jurisdictions (mostly in the South) to seek permission from the federal government before they can implement any law related to voting. If a voter-ID law, redistricting plan or other election law is seen as worsening the position of racial minorities, then the Department of Justice or a federal court in Washington will not allow the voting change to go into effect. Earlier this year, for example, a federal court struck down Texas's recently enacted voter-ID law and Congressional redistricting plan on that basis.

Unless a covered jurisdiction gets itself out from under the act by showing a clean voting rights record for the previous decade, it will be required to seek federal permission for all its voting laws until the law is set to expire in 2031.

The Supreme Court has reaffirmed the constitutionality of Section 5 four times. Congress re-enacted it in 2006 with tremendous bipartisan support. But times have changed at the court. Specifically, the constitutional standard for enforcing civil rights has become more restrictive, requiring such laws to be proportional to the constitutional evil they seek to prevent or remedy. As a result, the court has struck down or narrowed the Religious Freedom Restoration Act, the Americans With Disabilities Act and the Age Discrimination in Employment Act.

Relying on this restrictive standard, challengers to the act argue, with some reason, that the list of covered jurisdictions no longer resembles the "America's Most Wanted" of voting-rights violators that it did in 1965. In recent years we have witnessed one electoral dysfunction after another in jurisdictions not covered by the act, like Ohio and Miami-Dade County in Florida. (Of course, the covered states have the Department of Justice looking over their shoulders, so maybe the Voting Rights Act is performing its job.)

In a coarse and obvious sense, the re-election of a black president serves as a strong reminder that the historic obstacles to minority voting rights like literacy tests and poll taxes have been eliminated. The much discussed rise in the minority share of the electorate testifies to the decisive electoral power that previously disenfranchised communities now possess. Even if the president received only 15 percent of the white vote in Alabama and 11 percent in Mississippi, according to exit polls, he was able to assemble a diverse winning coalition elsewhere.

President Obama's re-election, or the circumstances of any presidential race, should be irrelevant to the constitutional question of whether Congress can require certain states to get federal permission for their voting laws. The differences between the average school-board election and a high-profile presidential race are huge. But had Mitt Romney been elected against the backdrop of charges of minority voter suppression, the argument for removing one of the few protections against discrimination in voting would have been a nonstarter.

Defenders of the Voting Rights Act have gained some ammunition from this election, despite the high-water mark it achieved for minority political participation. They will point to the voting laws and redistricting plans like those passed in Texas last year that the act prevented from going into effect as examples of Section 5's continuing utility. Indeed, since 2005, seven of the nine states fully covered by the act — Alabama, Arizona, Georgia, Mississippi, South Carolina, Texas and Virginia — have passed voter ID laws or other statutes that have made voting more difficult. Opponents will counter that it is unfair for federal law to allow Kansas to implement voter-ID laws that would be impermissible in Texas.

Civil rights groups and election reformers should begin preparing now for the likelihood that the court will strike down the Voting Rights Act. In a Texas case three years ago, the court warned that the act was living on borrowed time, and by the end of this Supreme Court term, that time may run out.

We saw in this election, as in every one since the debacle in 2000, the system's potential for a full breakdown. On election night, Mr. Obama mentioned the need to do something, at a minimum, to address the unbearably long wait times that greeted some voters. But the reforms should not stop there.

Congress needs to enact national rules governing voter registration, provisional and absentee ballots, and voter verification and access in a new Voting Rights Act tailored to the problems confronting American democracy today. The Voting Rights Act may have killed off historic barriers to minority political participation, but new challenges emerge with each election cycle.