The U.S. Supreme Court is poised to scrap the most effective piece of civil rights legislation in American history. President Barack Obama is why.
At issue is Section 5 of the Voting Rights Act, which requires that designated regions of the country (those with a history of racial bias in voting) obtain approval, known as “preclearance,” from the federal government before changing local voting rules. First passed in 1965 and most recently reauthorized in 2006, Section 5 assumes that changes to voting rules in these regions are discriminatory until proven otherwise. On April 29, the U.S. Supreme Court will hear argument on whether this provision remains constitutionally justified.
The question has long been debated among lawyers and politicians, but in recent months a novel argument has emerged. In the briefs and commentary on the case, lawyers on all sides are invoking Obama’s election as an event that critically informs the validity of Section 5. Opponents say the election proves the requirement is obsolete; supporters say Obama’s victory confirms the provision’s continued importance.
High court should hold off
The court should refuse to engage in this debate — at least for now. Whether or not the Obama presidency is a “gamechanger” is not something the justices should decide in this case. To consider Obama’s election now would fundamentally alter the legal inquiry and amount to an ill-advised power grab by the court. Rather than asking whether Congress had good reason to think Section 5 is still needed, the justices would be deciding for themselves whether reauthorization is a good idea today.
The court, moreover, is ill-suited to engage in an inquiry that requires the justices to find and evaluate complex facts of disputed significance. How, for instance, should the court understand Obama’s defeat in every state wholly subject to Section 5? Or the fact that he received less support from Southern whites than did Kerry in 2004? Or the fact that African-American support for Obama was strong in the very places where white support for Obama was most meager? What should the justices make of Section 5′s role in all this? Was it superfluous or did it deter misconduct that would have dampened robust African-American support for Obama? Was Section 5 what gave Obama a fair shot? In all, these are difficult questions that the justices are ill-equipped to answer.
The Obama presidency is nevertheless not something the court can or should ignore. The election of the first African-American president inexorably shapes the lens through which Section 5 is now understood. Obama’s presence in the briefs and commentary surrounding the pending case shows this, even if these references might properly be dismissed as legal error. Obama cannot help but influence how the justices will view the validity of Section 5. The justices should not pretend otherwise.
Obama’s election may indeed be a sufficiently transformative event that Congress must reconsider preclearance in light of it. While serious problems undeniably persist, this election may present cause to start afresh with new techniques designed to tackle the obstacles minority voters confront. At a minimum, neither the court nor Congress should proceed as if nothing has happened.
What then should the court do? Most prudently, the court should order the parties to brief and argue this question. Let them help the justices figure out how they should respond to a pivotal event that postdates congressional action but is widely understand to bear critically on it.
One way or another, Congress should be allowed to evaluate the significance of Obama’s election in the first instance. The court, however, lacks an obvious way to bring this about. The justices might be advised simply to hold the case until the end of the current congressional term so that Congress might consider the import of Obama’s election. Alternatively, the court might be urged to prod Congress more: The court could strike down the statute as an impermissible burden absent congressional consideration of the election, but stay its order for a period long enough to allow Congress to act. These approaches are hardly unproblematic, and briefing and argument may expose pitfalls that show both to be ill-advised. Some other course might be preferred.
Important role for DOJ
Obama’s Justice Department would weigh in, of course, but should also play an important additional role. It should implement a new, assertive stance regarding Section 5. Many counties now regulated by the statute could free themselves from it if only they applied for release. The Justice Department should identify places with good voting practices and offer agency support to help them “bail out.” The agency should also help places currently ineligible for bailout to develop strategies that would make them eligible in the coming years. Doing so would refine Section 5′s reach and activate a more flexible remedial program.
Obama’s election may be reason to scrap Section 5. Or it may confirm that Section 5 continues to provide necessary protection. Either way, the judgment should be Congress’ to make in the first place. The Obama presidency is a terrible reason for the Supreme Court to toss out the statute now.
Ellen D. Katz is a professor of law at the University of Michigan Law School.