The Voting Rights Act

The most effective civil rights law in our history was the Voting Rights Act of 1965. Before it was passed, millions of black Americans were effectively denied the right to vote.

By the time of the next presidential election, in 1968, very few blacks were denied access to the ballot, and by 1972, all American blacks could vote. Tomorrow, the House is going to take up reauthorization of the Voting Rights Act, the current version of which expires in 2007; the reauthorization would extend it 25 years, to 2032. One could argue that reauthorization is unnecessary, since no one seeks to exclude blacks from voting. Or one could argue that it's salutary to keep this law on the books, even though the right to vote is solidly established.

What's harder to argue, in my opinion, is that we need to keep every single provision in the act exactly as it is. Take, for example, the Section 5 provision that requires Justice Department preclearance of any election law changes in a state, county, or township where voter turnout in 1964 was less than half the voting age population at that time. Rep. Lynn Westmoreland, a freshman Republican from Georgia, has an amendment that would substitute for 1964 any of the three most recent presidential elections. The current provision covers nine states, including Georgia, and parts of seven others. Westmoreland's provision would cover six states, including Georgia, and parts of several others. The original provision was highly useful in the 1960s, when legislators in several southern states were actively trying to prevent blacks from voting. But it seems slightly ridiculous to continue to have the elections in 1964 remain a benchmark until 2032, 68 years later.

It might also be unconstitutional, as law professor and election law blogger Rick Hasen argues here. The Supreme Court approved the provision in question in 1970 after noting that it was "temporary" and "narrowly tailored." But how temporary and narrowly tailored is a law that bases its disparate treatment of states on something that happened in 1964?