Boychuk: Voting rights act is constitutional but outdated
People wait in line outside the Supreme Court in Washington to listen to oral arguments in the Shelby County, Ala., v. Holder voting rights case. (Feb. 27, 2013) Credit: AP
The 15th Amendment says Congress has the right to enforce its voting provisions "by appropriate legislation."
The question today is not whether the Voting Rights Act of 1965 is constitutional. Of course it is. Rather, the argument is whether an emergency provision of the law that made sense decades ago -- Section 5 -- remains "appropriate" today. It does not.
For the federal government to intervene in state and local elections, there had better be a mighty good reason. In 1965 the reason was clear: the nine states of the Old Confederacy and parts of seven others had raised unconstitutional legal obstacles against black Americans registering and voting.
We're not talking about long lines or asking people to produce an ID card -- a federal court last year, in fact, ruled that the Obama Justice Department overstepped its authority under Section 5 when it tried to stop South Carolina from implementing a voter-ID law. No, we're talking poll taxes, literacy tests and outright intimidation.
Under Section 5, a state or local government could fall under federal scrutiny if black-voter registration or turnout fell below 50 percent in the 1964, 1968, or 1972 presidential elections. Congress extended the provision for 25 years in 2006 with that same standard in place, as if nothing had changed in three decades.
Strange, isn't it, how progressives put so much faith in social advancement, yet refuse to see the progress right under their noses.
Yet as Chief Justice John Roberts pointed out, black-voter registration and turnout is higher today in red Mississippi than it is in blue Massachusetts.
Congress erred when it extended Section 5. Just as it was wrong for states to abuse their authority to deprive people of the right to vote, it is wrong -- and unconstitutional -- for the federal government to misuse a temporary emergency power to dictate states' voting laws forever. You don't need to be a "judicial activist" to realize it isn't 1965 anymore.
Ben Boychuk is associate editor of the Manhattan Institute's City Journal.
