The Voting Rights Act of 1965 set a restriction known as "preclearance" on certain states, cities and counties. These areas, concentrated in the South but including areas as distant as the Bronx, NY and Monterey County, California, all had histories of figuring out creative ways to force black people from the polls. Basically these areas were not allowed to make adjustments to voting laws without them being first approved by the Department of Justice.
But Barack Obama has forgiven us our sins. So what's the point of keeping preclearance?
Critics of the law call the preclearance requirement a unique federal intrusion on state sovereignty and a badge of shame for the affected jurisdictions that is no longer justified.
The preclearance requirement, originally set to expire in five years, was upheld by the Supreme Court in 1966 as a rational response to the often flagrantly lawless conduct of Southern officials intent on “perpetuating voting discrimination in the face of adverse federal court decrees.”
Chief Justice John Roberts is of the mind that acknowledging race as a factor in discrimination is form of discrimination. Which is like saying you haven't been shot if you pretend the bullet isn't there. But obviously, the direct question here is whether these states and counties should still be under preclearance.
The answer is that they should be evaluated individually. The question that is being addressed is one of whether or preclearance is an intrusion on state sovreignty, which is of course exactly what they called it when the voting rights act outlawed grandfather clauses and poll taxes. Some jurisdictions probably don't need to be under preclearance any longer, but it doesn't make any sense to outlaw preclearance as a whole without evaluating in each individual jurisdiction whether it is still needed. Securing the voting rights of people in those constituencies, regardless of race, is of greater priority than whatever sense of humiliation people feel from being under the preclearance requirement.
It should also be noted that Roberts, and opponent of extending preclearance when he was with the Reagan Administration, would be engaging in his own conservative judicial activism voting to overturn preclearance. Congress extended the VRA in 2006, so I don't know how the SCOTUS overturning it three years later can be described as anything other than legislating from the bench. There's about 50 years of precedent supporting the Federal government's efforts to protect voting rights, if the sovreignty argument was bogus then, it's bogus now. If preclearance needs to be ended, it should be ended in congress after a careful evaluation of how well the jurisdictions under preclearance have learned to honor the right to vote.
-- A. Serwer
