In the end the Supreme Court voted 8-1 to keep Section 5 of the Voting Rights Act in place. It may be, as Chief Justice Roberts suggested during oral arguments, an elephant whistle, but it’s been such a fine elephant whistle that most Americans are willing to keep it in place.
Section 5 requires that certain voting districts (the entire states of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina and Texas, along with certain counties and towns in California, Florida, Michigan, New Hampshire, North Carolina and South Dakota, and the New York boroughs of Manhattan, Brooklyn, and the Bronx), gain advance federal approval of changes in voting procedures.
Opponents of Section 5 argued that the measure unconstitutionally punishes select areas because of long-past discrimination. The opponents contended that discrimination no longer exists at the voting booth and therefore there is no legitimate reason for federal oversight.
During oral arguments, questions by the justices gave rise to speculation that the court might toss out Section 5, a measure that has been in place since 1965. The data used to support the 2006 extension of the act was more than 35 years old. It is reasonable to conclude that attitudes and behaviors in the affected voting districts have changed in 35 years. It is possible that discrimination exists in districts that aren’t included in the act. More recent data might tell a different story.
But Section 5 of the Voting Rights Act isn’t really about tracking down current trends. It’s more about keeping the elephant whistle polished.
One day Americans will put the whistle in a museum. But for now, we need to keep it close by. It’s a reminder of how far we’ve come. It’s also a reminder of how far we can easily fall.