Now, in Shelby County, Alabama v. Holder, the constitutionality of the extension of Section 5 is squarely before the court. Was Congress justified in concluding that the law remains necessary? Congress did not come to this conclusion lightly or quickly. In 2005-2006, the House and Senate Judiciary Committees held 21 hearings, listened to 90 witnesses and compiled a record of more than 15,000 pages. Representative Jim Sensenbrenner (R-Wis.), then chairman of the House Judiciary Committee, described this record as "one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 27 1/2 years that I have been honored to serve as a Member of this body."
Congress then voted overwhelmingly to extend Section 5 for 25 years. Congress expressly concluded that voting discrimination persists in the covered jurisdictions, and that without Section 5, "minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years."
The record before Congress supported this conclusion. For example, between 1982 and 2006, the Section 5 preclearance requirement blocked 750 discriminatory changes in election systems in covered jurisdictions. Another 205 discriminatory changes were withdrawn. Countless changes were not adopted because of the recognition that preclearance was unlikely. The continued discrimination in covered jurisdictions is further evidenced by 650 successful court challenges under Section 2 of the Voting Rights Act in these places. University of Michigan Law School professor Ellen Katz has done extensive studies and found that covered jurisdictions have only 25 percent of the country's population, but account for 56 percent of the successful suits under Section 2. Another study, by Peyton McCrary of George Washington University Law School, which included published and unpublished decisions, found that 81 percent of all successful Section 2 cases were in the covered jurisdictions even though they only hold 25 percent of the nation's population.
Nor is this over. Before the 2012 elections, of the 12 states with the largest Hispanic populations, seven adopted restrictive voting laws. Of the 10 states with the largest African-American populations, five adopted restrictive voting laws.
Race discrimination in voting, as in so many areas of society, continues. No one can deny that Section 5 of the Voting Rights Act has been hugely successful and an essential tool in preventing discriminatory election practices. It is far too soon for the court to declare victory.
For a half-century, conservatives have been proclaiming the need for judicial restraint. The court should practice exactly that and defer to the considered judgment of Congress that Section 5 of the Voting Rights Act remains a crucial weapon to ensure racial equality in voting and to protect the fundamental right to vote for all Americans.
Erwin Chemerinsky is dean and distinguished professor of law at the University of California, Irvine School of Law.