Once an election is done, it is hard to undo. That's true in Iran, and it's also true in the United States. That is why it is important to get the rules by which elections are run right before the elections are held.
For this reason, one of the essential components of the Voting Rights Act - and arguably its most powerful tool for combating discrimination and disenfranchisement - is its requirement that officials in places with a history of voting discrimination get approval from the Department of Justice before they change the way elections are conducted.
Allow the 16 states that have historical patterns of discrimination - or their counties, municipalities, and school districts - to opt out of such a review, and they will be able to organize and hold elections that renew those patterns. That's why the requirement has been referred to by law professors as one of the "crown jewels of the civil-rights movement."
Foes of the Voting Rights Act have long focused on weakening Section 5 of the act, the provision that requires election officials in the states covered by the act to obtain federal permission before making changes to voting procedures, moving polling-place locations, requiring so-called citizenship checks, or redrawing voting-district lines. They rightly argued that to do so would remove the teeth from the measure, which has long been disdained by Southerners pining for the days before, as former Senate Majority Leader Trent Lott put it, "all the laws of Washington" changed the way things were done in Dixie.
The Supreme Court tarnished the crown jewel yesterday, giving state and local officials new flexibility to "opt out" of the requirement that they obtain permission to change election rules. The court ruling does not invalidate the Voting Rights Act - as some had feared it would - but it does undermine it.
The court, with only one justice (Clarence Thomas) in partial dissent, said that the Northwest Austin Municipal Utility District No. 1, in Texas, can avoid the advance-approval requirement. The ruling is being interpreted as a signal that all local jurisdictions in Voting Rights Act states can at least apply for what is referred to as a "statutory bailout."
The high court's ruling reverses a lower federal court decision, which had preserved the Voting Rights Act as it was intended to operate.
This is a dangerous move, say civil-rights supporters. As U.S. Rep. John Lewis (D., Ga.), who has watched the court's deliberations closely, says: "No one can deny the fact we've made progress. But that's not the question. That's not the issue. The issue is, we need this tool to guard against the possibility of reverting back to our dark past."
Tooth by tooth
Lewis is right. Invalidating the Voting Rights Act would be a shock to the body politic. But dismantling the measure tooth by tooth should still be recognized for what it is: a judicial assault on history, and on the future.
The Voting Rights Act is still on the books - despite evidence from recent hearings that Chief Justice John Roberts and some of his conservative, activist colleagues would like to do away with it. Voters can still sue under its provisions when they believe they are victims of discrimination. Unfortunately, notes Laughlin McDonald, who directs the American Civil Liberties Union's voting-rights project, few plaintiffs will have the financial resources to pursue these complex cases.
And now the high court has taken a big whack at a crucial component of the Voting Rights Act.
So it falls to the Obama administration's Department of Justice - which has sent good signals about its commitment to enforcing voting-rights protections - and the Congress to put the teeth back in the act.
Senate Judiciary Committee chairman Patrick Leahy (D., Vt.) has warned that any attempt by the court to strike down the Voting Rights Act "would be conservative activism, pure and simple."
But the same goes for pulling the act apart tooth by tooth.