"But history did not end in 1965."
Progressives resent progress when it renders anachronistic once-valid reasons for enlarging the federal government's supervisory and coercive powers. Hence they regret Tuesday's Supreme Court ruling that progress has rendered Section 4 of the 1965 Voting Rights Act unconstitutional.
This section stipulates the formula by which nine states, including Arizona, and some jurisdictions in others are brought under Section 5, which requires them to get federal permission - "preclearance" - for even the most minor changes in voting procedures. The 15th Amendment empowers Congress to enforce with "appropriate legislation" the right to vote. Sections 4 and 5 were appropriate 48 years ago, when the preclearance provisions were enacted for five years. They have been extended four times, most recently in 2006 for 25 years.
Extraordinary laws that once were constitutional, despite being discordant with the nation's constitutional structure, can become unconstitutional when facts that made the law appropriate change.
The most recent data, such as registration and voting rates, on which Section 4 is based, are from 1972. The data would have been 59 years old when the most recent extension would have expired in 2031. Tuesday's decision prevents this absurdity that Congress embraced.
In 2009, in a case in which the court chose not to rule on the continuing constitutionality of the VRA's formula, the court - Chief Justice Roberts writing for the majority - clearly challenged Congress to update the VRA because it "imposes current burdens and must be justified by current needs." On Tuesday, Roberts tersely said Section 4 is "based on decades-old data and eradicated practices."
The 2006 extension was passed 390-33 and 98-0 in the House and Senate, respectively. Justice Antonin Scalia suggested during February's oral argument that these numbers indicated not conviction based on reflection about continuing necessities but rather the reluctance of risk-averse legislators to vote against something with the "wonderful" name Voting Rights Act.
Scalia should have cited the actual name of the 2006 extension: the "Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act." It is anti-constitutional to argue that it would have been admirable "restraint" for the court to respect Congress' decision to extend all of the VRA - whether from conviction, cowardice or sloth - regardless of what the court has called the act's "substantial federalism costs."
The decision came eight months after a presidential election in which African-Americans voted at a higher rate than whites. It came when in a majority of the nine states covered by the preclearance requirements, blacks are registered at a higher rate than whites. It came when Mississippi has more black elected officials - not more per capita; more - than any other state.
During oral argument, Justice Stephen Breyer suggested the VRA remains constitutional because it acknowledges the South's continuing moral inferiority. He likened Southern racism to a dormant but still dangerous disease.
Breyer's insinuation was that we "know" the covered jurisdictions remain uniquely diseased, or potentially so. Tuesday, Roberts' response was that (in words from a prior court ruling) "the constitutional equality of the states is essential to the harmonious operation of the scheme upon which the republic was organized."
Section 5 is now a nullity because it lacks force absent a Section 4 formula for identifying covered jurisdictions, and today's Congress will properly refuse to enact another stigmatizing formula. But the court paid the VRA the highest possible tribute Tuesday by saying the act's key provision is no longer constitutional because the act has changed pertinent facts that once made it so.
- Chief Justice John Roberts on Tuesday Email George Will at email@example.com