An odd scene unfolded in Washington on Wednesday: as the president and leaders of Congress were dedicating a statue to Rosa Parks, the lifelong activist whose defiance on a Montgomery, Alabama, bus helped spark the Civil Rights Movement, across the street the Supreme Court heard oral arguments on one of the signature piece of civil rights legislation, the Voting Rights Act.

Specifically, the court heard the case of Shelby County v. Holder, in which that Alabama county seeks to overturn Section 5 of the Voting Rights Act, which was passed in 1965. That section requires states — and some municipalities — to get pre-clearance from the Justice Department or the District of Columbia federal court before making any changes to voting laws.

The fundamental question is whether states that have a history of voter suppression should forever have to live with the legacy of that past.
The problem with the law, in my mind, is that it should be expanded rather than struck down.

The Brennan Center for Justice at New York University maintains that “Section 5 is an essential and proven tool.” According to the center:
“Although progress has been made since the Voting Rights Act passed in 1965, voting discrimination still persists. Between 1982 and 2006 (when Congress overwhelmingly renewed the law), the Voting Rights Act blocked more than 1,000 proposed discriminatory voting changes. Without Section 5’s protection, these changes would have gone into effect and harmed minority voters.”

The center calls the passage of the Voting Rights Act “a reflection of the promise of our Constitution that all Americans would truly have the right to vote without facing discrimination, poll taxes, and other abuses,” and I wholeheartedly agree with that point of view.

The problem that the law may run into is that it’s too narrow.
In a 2009 ruling questioning the constitutionality of Section 5, Chief Justice John G. Roberts Jr. wrote:

“The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the States originally covered by Section 5 than it is nationwide.”

If the Voting Rights Act covered all states and not just some, Justice Roberts’s argument would be null. In fact, there is growing evidence that such a national requirement would be prudent. Many of the states that sought to install voter suppression laws leading up to last year’s election were in fact not covered by Section 5.

Roberts hammered this point home Wednesday during oral arguments, asking, “Is it the government’s submission that the citizens in the South are more racist than the citizens in the North?”

Seven of the nine states covered by Section 5 are in the south (Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia). The other two states are Arizona and Alaska. Some counties and townships are covered in other states.

The Southern states that Section 5 applies to span the Black Belt of the south, a region with the most glaring electoral abuses in the 1960s.
A November Pew Research Center report points out the obvious: blacks were the largest minority group in 1960, but that is no longer the case.

According to the report, blacks were 11 percent of the population, while Hispanics were 3.5 percent and Asians were .6 percent. Since then, the demographics of the country have changed dramatically. According to Pew, in 2011 blacks were 12 percent of the population, while Hispanics were 17 percent and Asians were 5 percent. And the numbers are projected to change even more. By 2050 Pew estimates that blacks will be only 13 percent of the population, while Hispanics will be 29 percent and Asians 9 percent.

To boot, Hispanics and Asians geographically dispersed differently than blacks.

We not only need to keep Section 5 in place, we also need to consider expanding it so that every voter has fair and equal access to the ballot. There are hurdles to achieving this goal, of course. The court might also find that it’s unconstitutional to broaden that section of the law, deeming it too onerous and an infringement on states’ rights — particularly those states that don’t have a demonstrable, endemic, systematic history of discrimination.

Still, it’s worth some thought.

During oral arguments, Justice Antonin Scalia went so far as to call Section 5 the “perpetuation of racial entitlement.” (That guy...) It’s not a racial entitlement, sir, but insurance against racial suppression.
In the president’s remarks at the statue dedication, he rightfully hedged his words. Instead of saying that because of people like Parks our children grow up in a land that is free and fair and true to its founding creed, he said that because of them it is “more free and more fair; a land truer to its founding creed.” (Emphasis mine.)

We’ve come a long way, but we’re not there yet, and the last thing we want or need now is to slide backward.