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George F. Will: Time caught up with the Voting Rights Act

Published: June 27, 2013
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Tuesday's decision came nine years after a presidential election in which most of the states where higher portions of whites than blacks were registered were in states (e.g., Massachusetts) not covered by Section 5. The decision came eight months after a presidential election in which African-Americans voted at a higher rate than whites. It came when in a majority of the nine states covered by the preclearance requirements, blacks are registered at a higher rate than whites. It came when Mississippi has more black elected officials — not more per capita; more — than any other state.

The Supreme Court's 1896 Plessy v. Ferguson decision affirming the constitutionality of racial segregation in separate but supposedly equal public accommodations rejected the idea that such segregation imposed a “badge of inferiority.” But of course it did, as the court acknowledged in its 1954 school desegregation ruling. And during oral argument in February, Justice Stephen Breyer suggested the VRA remains constitutional because it acknowledges the South's continuing moral inferiority. He likened Southern racism to a dormant but still dangerous disease:

“Imagine a state has a plant disease, and in 1965 you can recognize the presence of that disease. … Now, it's evolved. … But we know one thing: The disease is still there in the state.”

Breyer's insinuation was that we “know” the covered jurisdictions remain uniquely diseased, or potentially so. Tuesday, Roberts' response was that (in words from a prior court ruling) “the constitutional equality of the states is essential to the harmonious operation of the scheme upon which the Republic was organized.”

Section 5 is now a nullity because it lacks force absent a Section 4 formula for identifying covered jurisdictions, and today's Congress will properly refuse to enact another stigmatizing formula. On Tuesday, however, the court paid the VRA the highest possible tribute by saying the act's key provision is no longer constitutional because the act has changed pertinent facts that once made it so.

George Will's email address is georgewill@washpost.com.

WASHINGTON POST WRITERS GROUP