If it struck Voting Rights Act Section 5, Court would abandon key precepts of constitutional analysis.
Published in National Law Journal.
Did the questions put by Justice Anthony Kennedy and his more conservative brethren during the April 29 argument of the challenge to the preclearance provisions of the Voting Rights Act indicate how they will eventually rule? If they did, these justices would have sacrificed not only a vital safeguard for minority voting rights, but their own jurisprudential principles, to a misplaced states' rights ideology.
The preclearance provision, first enacted as part of the Voting Rights Act in 1965, requires certain jurisdictions that have a history of racially discriminatory voting practices to get approval from the U.S. Department of Justice or a three-judge federal court in Washington before making any changes in voting or election laws. Preclearance was adopted because after-the-fact litigation was considered inadequate to prevent these jurisdictions from regressing to long-entrenched discriminatory practices. Preclearance is the heart of the Voting Rights Act, which has helped enfranchise millions of African-Americans and restored black representation swept away in the Jim Crow era.