Posner and Stephanopoulos: "Don't Worry About the Voting Rights Act"

Don’t Worry About the Voting Rights Act
Eric Posner and Nicholas Stephanopoulos
November 20, 2012

Earlier this month, the Supreme Court agreed to hear the case of Shelby County v. Holder, a challenge by an Alabama county to Section 5 of the Voting Rights Act. Under Section 5, states and counties with a history of discriminatory voting practices are not permitted to change the rules for elections without first persuading the Justice Department (or a court) that their new policies will improve, or at least not harm, minority representation.

The court agreed to hear Shelby County’s challenge just three days after the re-election of President Obama. Many commentators believe the timing is no coincidence. The five conservative justices have already expressed skepticism about laws that give advantages or special consideration to minorities. Having just seen an African-American re-elected as president, they might think the moment is right to strike down a law that is based on the assumption that the South, where Section 5 mostly applies, still discriminates against minority voters more than the rest of the country.

Liberals, among them Slate’s Emily Bazelon, are wringing their hands. They point out, correctly, that President Obama’s re-election does not prove that racism has disappeared, or that Southern states no longer try to disenfranchise minority voters. Don’t widespread state efforts to enforce new photo ID laws prove just the opposite? But these concerns are overstated. A judgment that Section 5 is unconstitutional would have ambiguous, and probably minor, effects on minority representation and electoral outcomes.

Faculty: 
Eric Posner