That is why organizations that serve minority groups love Section 5. Unlike with Section 2, they don’t have to prove a case in court to stop redistricting plans or other legislation they don’t like; they just call their friends and former colleagues at the Civil Rights Division and tell them to object. More than one court decision has noted the embarrassing and highly unethical coordination between the Civil Rights Division and such outside groups.
Based on any reasonable statistical measure, the difference in voter participation between covered and uncovered states has disappeared. The “legislative record” developed by Congress in 2006 deliberately stayed away from exploring the differences in minority office-holding rates and voter turnout between covered and noncovered states — because doing so would have shown there was no basis for extending the law. Even the relatively small number of voting-discrimination cases filed under Section 2 show the exact opposite of what the proponents of Section 5 would like: More Section 2 cases are filed in states that are not covered under Section 5.
No one can truthfully assert that state governments in Virginia and Georgia are still racist and full of defiant government officials, particularly when compared with noncovered neighboring states such as Pennsylvania and Tennessee. There is no difference that justifies such an intrusive and extraordinary law.
Given all these developments, it should be easy for the Supreme Court to make the right decision on this case. A renewal based on 40-year-old evidence that studiously ignored seismic changes in our society, elections, and democratic institutions should not stand.
But, afraid of being labeled racist, a cowardly Congress renewed Section 5 just three years ago. Let’s hope the justices have the courage to do what Congress did not: consider the applicable facts and law, and do the right thing.
–Hans A. von Spakovsky, a visiting legal scholar at the Heritage Foundation, was formerly a member of the Federal Election Commission and a lawyer in the Civil Rights Division at the Justice Department.