By the end of June, the Supreme Court will decide one of the most important voting rights cases in a generation. Argued April 29, the case, Northwest Austin Municipal Utility District Number One v. Holder, threatens to strike down Section 5, known as the heart of the Voting Rights Act, the single most effective provision of any civil rights law in our Nation's history.
First enacted in 1965 and most recently reauthorized by Congress in 2006, Section 5 serves as our democracy's checkpoint in protecting minority voters from persisting and clever discrimination. It requires jurisdictions with some of the worst histories of voting discrimination to submit all proposed voting changes to the Department of Justice or a federal court for approval before the changes can take effect.
During the oral argument, Chief Justice John Roberts, expressing great doubt about whether Section 5 remains necessary today, compared the effect of Section 5 to an "elephant whistle...You know, I have this whistle to keep away the elephants," Roberts said rhetorically. "That's silly… there are no elephants, so it must work."
Of course, Congress was not looking for elephants but for discrimination, and they found plenty of it even more than forty years after brave citizens marched, sat in and shed bled to give meaning to the un-kept promise of equality under our constitution.
In 2006 Congress amassed overwhelming evidence that Section 5 is still necessary, and indeed, vital, to protect minority voters from discrimination.
After holding 21 hearings over 10 months, receiving testimony from over 90 witnesses, and compiling a record spanning more than 16,000 pages, Congress found that that while significant progress has been made because of Section 5, 40 years was insufficient to eliminate the discrimination that followed nearly 100 years of outright disregard for the Fifteenth Amendment's protection of the right to vote for Blacks and other minorities.
Taking a different view than Justice Roberts during the argument, Justice David Souter, speaking to the lawyer who brought the case on behalf of a small Texas water district said, "I don't understand, with a record like that, how you can maintain as a basis for this suit that things have radically changed. They may be better. But to say that they have radically changed … [is] to deny the empirical reality."
Reality, of course, makes clear that without Section 5, minority voters would continue to face fierce discrimination. Congress found hundreds of examples of Section 5's role in blocking more than 700 proposed discriminatory changes, an incredible 60 percent of which were based on purposeful discrimination, and deterring many more.
The claim that Texas, and the jurisdictions within it, no longer pose a risk of voting discrimination is not supported by the evidence. Repetitive violations remain common. Section 5, for example, blocked the discriminatory implementation of every redistricting plan for the State's House of Representatives following each census since the 1970's.
Of course Texas is not alone. The pattern is that discriminatory voting changes are adopted precisely when minority communities are on the verge of exercising political power.
In Kilmichael, Mississippi, Section 5 blocked a proposed cancellation of elections by white officials after the 2000 Census indicated that Blacks could be elected during the 2001 election for the first time in place where voting patterns were polarized along racial lines.
Congress heard all of this evidence, and more, and concluded that Section 5 remains essential in protecting our right to vote, the one right that is preservative of all others. Justice Souter has it right — without Section 5, discriminatory voting changes would have gone into effect.
As Congress recognized in 2006, Section 5 is not about yesterday's problems — it is as necessary today as it was when it was first enacted more than 45 years ago.
Activism of brave citizens gave us this critical checkpoint and now only activism of a majority of the Supreme Court could deem it unconstitutional. As we await the Supreme Court's ruling in this critical case, all who have actually considered the life on the ground know that Section 5 must stand for another 25 years. The protection that has given the right to vote its meaning, and the integrity of our democracy depends on it.
John Payton is president and director-counsel of the NAACP Legal Defense and Educational Fund, which argued the case in support of Section 5 of the Voting Rights Act before the United States Supreme Court in April.
