When it threw out an old formula under which certain states and local governments had to clear any changes to their voting procedures with the US Justice Department, the Supreme Court effectively gutted a key provision of the Voting Rights Act. Because this Congress is unlikely to pass a new formula for singling out areas with a tendency toward racial and ethnic discrimination at the polls, the so-called “preclearance” process seemed to be rendered moot. But the Voting Rights Act, which was signed 48 years ago yesterday, still allows the federal government to seek that power on a jurisdiction-by-jurisdiction basis, and last month Attorney General Eric Holder wisely moved to do so in Texas.
The places that are most likely to adopt discriminatory voting rules in the future are the ones that have done so in the recent past. Holder’s suspicion of Texas is well-grounded. District lines redrawn in 2011 so diluted the clout of voters of color that a federal court blocked their implementation. Just last year, a federal appeals court struck down the state’s voter ID law on the grounds it would depress minority turnout.
The move was only the beginning, Holder indicated, of the Justice Department’s efforts to maintain some advance scrutiny of potentially discriminatory voting rules. Maintaining this power is important because after-the-fact challenges to voting laws can spend years in the courts — during which time people may be deprived of their rights. Unfortunately, it will be difficult to keep up with efforts by states, mostly in the South, that are rushing to enact more restrictive voting laws in the aftermath of the Supreme Court decision. Still, Holder deserves credit for putting states on notice that their actions are being watched, and that this year’s Supreme Court decision doesn’t mean that states have free rein to discriminate.