WASHINGTON — Progressives are remarkably uninterested in progress. Social Security is 78 years old and myriad social improvements have added 17 years to life expectancy since 1935, yet progressives insist the program remain frozen, like a fly in amber. Medicare is 48 years old and the competence and role of medicine have been transformed since 1965, yet progressives cling to Medicare “as we know it.” And they say the Voting Rights Act, another 48-year-old, must remain unchanged, despite dramatic improvements in race relations.
The question concerning which the Supreme Court heard oral arguments last Wednesday was whether Section 5 of the VRA is still constitutional, given the disappearance of the conditions that once made it acceptable as a temporary and emergency truncation of states' sovereignty under federalism. In 2008, two years after the fourth renewal of the act, Barack Obama won a higher percentage of the white vote than did Al Gore and John Kerry in 2000 and 2004, respectively. Today Mississippi has more black elected officials — not more per capita, more — than any other state. Yet defenders of the continuing necessity of Section 5 merely shrug about the fact that race is no longer a barrier to either the nation's highest office or to state and local offices in what once was the state most emblematic of resistance to racial equality.
Last Wednesday, Chief Justice John Roberts, noting that Massachusetts has the worst rate of white turnout compared with that of blacks, and that Mississippi has the best, asked Solicitor General Donald Verrilli: “Is it the government's submission that the citizens in the South are more racist than citizens in the North?” Verrilli said no. His answer was obviously false. Otherwise, the administration would favor extending Section 5 to the entire nation.
Justice Anthony Kennedy asked Verrilli why the government, which purports to believe both that the VRA remains necessary and that there are not regional differences in racism, does not want to make the VRA universally applicable. Verrilli replied that “history remains relevant” and Congress considered it “prudent” in 2006 to maintain Section 5's “deterrent and constraining effect.” It was prudent, and history is relevant, only if the citizens of the South remain more racist than the citizens of the North.
Verrilli did not deny that Section 5 takes a toll on federalism. Kennedy, whose vote is apt to be decisive, described the toll disapprovingly as a federal “trusteeship” over the covered states and jurisdictions. Citing the Marshall Plan and other excellent laws that were not necessary forever, Kennedy said: “Times change.”
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