Congressional solutions to state election issues must be based on current, not past, circumstances.
The U.S. Supreme Court raised howls of outrage in some quarters Tuesday when, by a 5-4 margin, it struck down legislation that requires parts or all of 16 states to get advance approval from the federal government before making any changes in its electoral practices.
Critics charged the decision is an assault on voting rights of minorities. But the court's majority sensibly held that enforcing elections rules today based on the circumstances of 40 to 50 years ago simply made no sense, and, as a result, does not pass constitutional muster.
Make no mistake about it — voting is a sacred right in our country. It's the key to change, and much has changed for the better since Congress passed the Voting Rights Act of 1965.
To deny the sweeping progress made is to live in the past, as Chief Justice John Roberts wrote in his majority opinion.
"In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were," Roberts wrote.
It's important to understand what the court decision does and does not do. Virtually the entire Voting Rights Act stands unchanged; the federal government remains free to challenge what it perceives to be discriminatory election rules in all states. But under this decision, it no longer has the power to forbid the affected states from making changes in election rules that range from minor issues, like moving polling places, to bigger ones, like requiring photo IDs to vote.
Further, it said Congress is free to reinstitute the so-called pre-clearance requirement if, using updated standards, it identifies systematic discrimination against voter groups.
It's hard to argue with that logic. What business would fashion solutions to problems based on circumstances in place 40 to 50 years earlier? Only Congress would do such a foolish thing.
The original Voting Rights Act of 1965 put its rules in place for a five-year period. Since then it's been regularly extended. In 2006, Congress passed another extension, this time for 25 years.
Had that extension stood, the Justice Department would in 2031 still be enforcing the pre-clearance provision of the law based on conditions in 1965 — 66 years earlier. That makes no sense.
The Voting Rights Act of 1965 targeted 16 states, but focused primarily on states in the Deep South that had historically denied black citizens the right to vote. When it was first enacted, the percentage of black citizens registered to vote stood at 6.4 percent in Mississippi and less than 20 percent in Alabama, a disgracefully small percentage that proved the necessity of federal intervention. But, as Roberts pointed out in his opinion, circumstances have changed to the point that in the 2012 election "African-American turnout has come to exceed white voter turnout in five of the six states" covered in the original bill.
The constitutional problem the court addressed involves federalism, the right of all states to be treated equally by the federal government absent some extraordinary circumstances. The court found that using circumstances in place in 1965 to hamstring selected states in 2013 is inconsistent with the constitutional imperative to let state officials make their own decisions on electoral issues.
Writing a bitter dissent, Justice Ruth Ginsburg defended the voting rights provision that was struck down, pointing out that discrimination still exists and must be resisted.
Discrimination, no doubt, does exist and where it exists the problem must be addressed.
But the means of doing so is the issue, and it's illogical to assert, as the stricken legislation does, that nothing has changed since the days of Jim Crow gave way to voting rights.
The 50 states do have rights that deserve protection under the federal system established by the U.S. Constitution. Why shouldn't Mississippi and Alabama be treated the same as Illinois and Kansas if the facts demonstrate that voters in all those states are treated the same?
Further, if the facts today, not in 1965, show that there is discriminatory treatment that must be rectified, Congress can and should act. But the burden on legislators, if they choose to bear it, must be to fashion legal protections that reflect modern realities, not the shameful circumstances of decades ago.