Sometime before the end of June, the Supreme Court will decide Shelby County 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  Shelby County has argued that the Act is unnecessary and outdated and has urged the Supreme Court to hold it unconstitutional on that basis.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’s 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. 

For example, in this week’s Wall Street Journal, examining what he calls the “good news about race and voting,” Andrew Kohut, the founding director of the Pew Research Center, argues that, in recent presidential elections, very few citizens, whatever their race, have reported difficulties with going to the polls in order to exercise their right to vote.  Kohut notes that in the last several presidential elections, African American voter turnout has steadily increased.  Based on the “good news” from this small slice of evidence, 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.”   

The good news about increased 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 the last 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 the express authority granted in the Constitution, Congress enacted this essential protection to help ensure that the right to vote would actually enjoyed be by all citizens without regard to race.  Indeed, the progress that recent data show depends, in large measure, on the protections the Voting Rights Act provides.     

What all of 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 candidate of choice. 

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 the covered jurisdictions.  While some of the forms of discrimination catalogued in the massive record compiled by Congress included efforts to suppress the vote and dampen turnout, other discriminatory voting changes sought to stifle 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.