Ellen D. Katz is a liberal law professor and a big fan of the Voting Rights Act of 1965, which she calls the most effective civil rights legislation in American history. “It’s sacred,” she said. “It’s holy.”
But Katz is torn about what the Supreme Court should do in a case asking it to strike down a central part of the law. She cannot shake the feeling that the election of the nation’s first black president has changed everything.
“This election was momentous,” said Katz, who teaches voting rights and legal history at the University of Michigan, “and it arguably presents the moment when Congress should close out this regime.”
That Barack Obama is president is not directly relevant to any issue in the case, Northwest Austin Municipal Utility District No.1 v. Holder, No.08-322, which will be argued on Wednesday and is widely considered the most important of the term. Yet as they consider whether to cut off one of the great legal legacies of the civil rights era, the justices may be asking themselves the inevitable question:
Is a law rooted in the age of Jim Crow still needed in the Obama era?
The central question before the court, though, is this: Did Congress overstep its constitutional power in 2006 by reauthorizing Section 5 of the act, which requires states and localities with a history of discrimination to obtain federal permission before making changes to their voting procedures?
“Obama inexorably shapes how we understand Section 5 today,” Katz said, adding that the court should take the unusual step of finding a way to force Congress to take a fresh look at the law, which expires in 2031.
Theodore M. Shaw, a law professor at Columbia and a former president of the NAACP Legal Defense and Educational Fund Inc., said the court should not place too much weight on a single election.
“We’ve had a profound moment, and we’re in a different place,” Shaw said. “But race still plays powerfully in electoral politics in this country. If it weren’t for the Voting Rights Act, there would be no President Obama.”
The act was a triumph of the civil rights movement. It took on, as the Supreme Court said in upholding it in 1966, the “insidious and pervasive evil” of state officials defiantly committed to denying blacks the right to vote.
At the act’s heart is Section 5, which requires state officials to get permission from the Justice Department or a federal court before they make even minor changes to voting procedures. Such federal intrusion into state affairs through “preclearance” rather than subsequent litigation was needed, the Supreme Court said in 1966, to address “unremitting and ingenious defiance of the Constitution” by state officials.
The court has repeatedly upheld the act. Just last month, even as it limited another part of the law, three relatively conservative justices in the majority acknowledged that more work was needed to ensure equal access at the polls. Some state officials, mostly in the South, bristle at what they say is the stigma, burden and federal intrusion that come with being covered by Section 5.