Before the end of this month, the Supreme Court is expected to decide Shelby County, Ala. v. Holder, a constitutional challenge to the preclearance provision of the Voting Rights Act, one of the act's most important guarantees against racial discrimination in voting.
Shelby County has argued that the act is unnecessary and outdated and has urged the Supreme Court to hold it unconstitutional on that basis. With the court decision looming, a number of recent commentators have suggested that, in light of recent voter turnout data, the Voting Rights Act is no longer needed. They are wrong.
In The Wall Street Journal last month, examining what he called the "good news about race and voting," Andrew Kohut of the Pew Research Center argues that in recent presidential elections very few citizens, whatever their race, have reported difficulties going to the polls to exercise their right to vote. Mr. Kohut noted that in the last several presidential elections, African-American turnout has steadily increased. Based on the "good news" from this small slice of evidence, Mr. Kohut suggests that opponents of the Voting Rights Act could argue "the legislation has accomplished its objective of ending racial discrimination in voting and is no longer needed."
Increased voter turnout among African Americans is worthy of celebration, but it is no reason to scrap the preclearance requirement of the Voting Rights Act, which for 48 years has played a critical role in realizing the Constitution's command of voting equality and preventing state-sponsored voting discrimination.
Enacted in 1965 and renewed by Congress in 1970, 1975, 1982 and 2006, the act's preclearance requirement forbids governments with a history of voting discrimination from enforcing racially discriminatory voting changes. Using express authority granted in the Constitution, Congress enacted this essential protection to help ensure that the right to vote would actually be enjoyed by all citizens without regard to race. Indeed, the progress reflected in recent elections depends in large measure on the protections the Voting Rights Act provides.
In 2012, for example, the Voting Rights Act played a critical role in preventing the enforcement of newly enacted state voter suppression efforts designed to keep citizens likely to vote for President Barack Obama from the polls. Responding to a wave of voting restrictions enacted in covered jurisdictions, including Texas, South Carolina and Florida, judges across the ideological spectrum concluded that stringent new voter identification laws and cutbacks on early voting would discriminate against African Americans and could not be enforced. The 2012 elections show why the Voting Rights Act remains the nation's most successful civil rights law to combat voter discrimination.
What the recent commentary about voting data misses is the fact that the Voting Rights Act is not simply about increasing African-American voter turnout but about preventing all forms of racial discrimination in voting. Like the Fifteenth Amendment, which it enforces, the Voting Rights Act prohibits all forms of racial discrimination in voting, including not only efforts to limit access to the ballot but also to prevent minorities from electing their preferred candidates.
In 2006, Congress renewed the Voting Rights Act by lopsided bipartisan votes -- 98-0 in the Senate and 390-33 in the House -- not because of turnout data, but because of overwhelming evidence of continuing racial discrimination in voting concentrated in covered jurisdictions.
While some of the discriminatory actions cataloged in the massive record compiled by Congress included efforts to suppress the vote and dampen turnout, others sought to redistribute and minimize minority voting power at the very moment that demographic changes gave minorities a real chance to exercise political power.
The Fifteenth Amendment prohibits both vote denial and vote dilution, giving Congress the sweeping constitutional power to end all forms of racial discrimination at the ballot box and guarantee a multiracial democracy open to all regardless of race.
If the Supreme Court follows the Constitution, it will uphold the Voting Rights Act.
David Gans is director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center, a think tank, law firm and advocacy organization based in Washington, D.C.