Jeffrey Toobin had an important piece in The New Yorker discussing the Constitutional challenge to Section 5 of the Voting Rights Act that is soon headed for the Supreme Court. Section 5 forces jurisdictions with a history of discriminating against minority voters to "preclear" their election law changes with the Justice Department. Those arguing that Section 5 is unconstitutional are essentially reprising previous arguments about the law, that it infringes on states' rights, but with a new twist: Barack Obama's election proves racism doesn't exist anymore and therefore Section 5 is no longer needed. Toobin gets to why that isn't so simple (my emphasis):
What recent electoral history shows is that voting requires broader, not narrower, protection. In many parts of the country, the voting rights of poor and minority citizens are treated with not so benign neglect. In the 2000 election, African-American voters in Florida suffered disproportionately from that state's shoddy practices, such as inadequately maintained registration lists and inferior technology; in 2004, many minority voters in Ohio endured long lines waiting for balky, and too few, voting machines. Across the nation, laws that remove the franchise from those with criminal convictions hit minorities especially hard. More directly, the Republican Party has made an institutional commitment to eradicate the nonexistent problem of voter fraud by imposing identification requirements that are obviously aimed at limiting the numbers of voters from demographic groups that favor Democrats. But neither Florida nor Ohio is a covered jurisdiction under Section 5, and the act is not written to address new techniques of suppression.
I think there was a time in the South when opposition to blacks voting was based on a sort of quasi-religious belief in white supremacy and entitlement. This was a white man's country, we weren't meant to be here except as property. The new minority voter disenfranchisement is rather utilitarian and almost incidental in its racism; it's not based on the idea that blacks shouldn't have a say in American democracy because we're inferior, it's based on narrow partisan interests. Blacks vote for Democrats, therefore, disenfranchising them through redistricting changes, the addition of at-large seats in local elected bodies to dilute black voting power, or even the moving or early closing of a polling place helps prevent Democrats from getting elected. To say we no longer need Section 5 because we can take for granted the idea that black people have the right to vote doesn't change the fact that blacks and other minorities continue to be targeted, in many of the Section 5 jurisdictions, because their votes are assumed on the basis of their ethnic background.
Moreover, part of the reason you don't hear more about terrible forms of voter disenfranchisement is that Section 5 prevents those kinds of things from happening. Part of the argument is that we no longer need Section 5 because disenfranchisement is no longer the problem it was, but that's partially because of vigorous enforcement of Section 5.
It's true that we're a very different country from 1965, and Obama's election is proof of that. But just because the old motivations for disenfranchising minority voters aren't there, doesn't mean that modern versions of such tactics are now completely legitimate.
-- A. Serwer
