Pildes writes in the New York Times Room for Debate about Supreme Court voting rights case

On April 29, the United States Supreme Court heard oral arguments on the constitutionality of a central provision of the Voting Rights Act that requires states and local governments with a history of discrimination to obtain advance federal permission, or “preclearance,” before changing their election laws. In Northwest Austin Municipal Utility District No. 1 v. Holder, a Texas utility district seeks to have Section 5 of the Voting Rights Act, which was reauthorized by Congress in 2006 for another 25 years, declared unconstitutional.

Richard Pildes, Sudler Family Professor of Constitutional Law, writes in the New York Times Room for Debate that this system made sense when it was first created. “There were areas of the country where the risk of bad-faith manipulation of election laws could be presumed. And it was easy to identify which states to single out, because they had been at it since the 1890s.”

But the problem, Pildes pointed out, is that once Congress created the coverage scheme it essentially never revised it. “Can it be that nothing has changed since 1975 to justify some modification in policy for states and counties presumed to act in bad faith and singled out for unique federal control? The reason Congress ended up at this point is obvious: the issues of race and politics remain too explosive for politicians to touch.”

“I would not want to see Section 5 expire altogether,” Pildes writes. “But Congress would have made it much easier to justify that view, and to signal that we can have a serious discussion about today’s facts concerning race and politics, had it updated Section 5 in any way, however modest, to reflect the obvious changes over the last two generations even before we elected an African-American president.”