Julian Bond is a professor at American University and chairman emeritus of the NAACP. Judith Browne Dianis is codirector of Advancement Project, a next-generation, multiracial civil rights organization in Washington, D.C.
As the Supreme Court prepares to hear a case this month challenging the constitutionality of a key part of the Voting Rights Act of 1965, opponents of the law question whether it's fair, necessary or relevant. "A lot has changed since the 1960s," they argue. "Haven't we overcome?"
The truth is, not enough has changed (and no, we have not). Known as Section 5, the provision requires all or parts of 16 states with a history of discriminatory voting practices to get federal clearance before making any changes in voting procedures. Our strongest tool for warding off voter suppression, Section 5, puts the burden of proof on state and local governments with long histories of suppressing minority votes to show their new voting proposals do not have a discriminatory impact. This was passed in order to stop an endless cycle in which the federal government would strike down unjust voting practices, only to have states subsequently enact new, slightly different problematic voting laws. The precautions of Section 5 effectively block discrimination from occurring.
While it's true that we no longer live in the era of marchers attacked with billy clubs on Bloody Sunday, or the assassination of Mississippi voting rights activist Medgar Evers, the more subtle practices that triggered the passage of Section 5—the smaller tweaks that make voting harder—have not changed. In fact, during the last election cycle we saw them happen en masse.
Eleven states passed restrictive photo ID laws, which changed the type of identification required for voting, allowing citizens to cast a ballot only if they presented limited forms of state-issued photo ID. Five enacted legislation that reduced early voting periods, serving only to make it less convenient and more time-consuming to vote. These policies were designed to make it harder to vote—particularly for African-American and Latino citizens. Luckily, Section 5 was on hand to beat back several of these efforts.
Last year, Section 5 blocked photo ID laws in Texas and South Carolina. Section 5 was also used to reject a Texas redistricting plan intentionally designed to undercut Latino voting power. As the U.S. Department of Justice reviews Mississippi's photo ID law, that legislation is currently on hold. Section 5 continues to play its vital role.
Along with claims of being outdated, however, another common argument leveled against Section 5 is that it's unfair because certain states are targeted while others are not. Meanwhile, jurisdictions that are not covered—Ohio, Pennsylvania, Tennessee, and most of Florida, for example—have some of the nation's most egregious voting rights records. As the short-sighted reasoning goes, Section 5 should be dismantled because, by prohibiting only some states from passing discriminatory voting laws, it wrongfully discriminates against those jurisdictions. This could not be further off the mark.
It's true that voting continues to be problematic in jurisdictions beyond the reach of Section 5. Yet at a time when voting rights are under assault, the answer is doing more to expand federal oversight in these other states—not doing less by scrapping the most effective civil rights legislation ever enacted.
Whether Congress is capable of working together to add more jurisdictions under Section 5 (which has been done several times since it was first passed) remains to be seen. But what's certain is that striking the provision down will only make it easier for partisan legislatures to manipulate election laws for political gain. We will see more of the kinds of problems we saw in the last election. Voters should not be punished because our lawmakers have failed to act.