JURIST Guest Columnist Laughlin McDonald, Director of the ACLU Voting Rights Project, says that with voting in the United States still significantly polarized along racial lines notwithstanding Barack Obama's presidential win, the Voting Rights Act will remain a necessary tool protecting the right of all Americans to vote under the incoming administration as it has been previously…

When Congress amended and extended the Voting Rights Act in 2006, it found, among other things, that evidence of racially polarized voting justified continuing its special federal oversight provision. Now, some opponents of this provision – known as Section 5 – have argued that Barack Obama's election as president in 2008 shows that voting is no longer divided along racial lines, and that it is not necessary to require certain states with egregious histories of racial discrimination to get federal approval of changes in their voting practices. But the record proves these critics are wrong.

There is no question that Obama's election reflects an enormous advancement in race relations in the United States. Few would have thought when the Voting Rights Act was passed in 1965 that a black person could win the nation's highest office within the foreseeable future. But an examination of the election results shows that voting, particularly in the southern states covered by the oversight provision, remains significantly polarized along racial lines.

Of the nine southern states covered in whole or in part by Section 5, six went for McCain – Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Texas. The average white vote for Obama was only 18%. And in some of the states, the white vote for the Democratic candidate declined compared to the 2004 presidential election. Kerry got 19% of the white vote in Alabama in 2004, while Obama got just 10% in 2008. In Louisiana, Kerry got 24% of the white vote in 2004, while Obama got only 14% in 2008. In Mississippi, Kerry got 14% of the white vote, and Obama 11%.

Progress has been made in minority political participation, much of it attributable to the Voting Rights Act's ban on discriminatory tests or devises for voting and the federal oversight of voting changes in the covered jurisdictions. But nothing in the 2008 election casts doubt on Congress's considered judgment that racially polarized voting shows that racial minorities remain politically vulnerable warranting the continued protection of the oversight requirement.

And aside from polarized voting, Congress relied upon other factors in extending Section 5 two years ago. It noted the hundreds of Section 5 objections to discriminatory election practices since the last extension in 1982, the actions undertaken by the Department of Justice and private plaintiffs to enforce Section 5, the hundreds of lawsuits that successfully challenged voting practices that diluted minority voting strength, and the thousands of federal observers sent to monitor elections in the covered jurisdictions.

The 2006 amendment and extension of the Voting Rights Act was based upon an extensive legislative record and passed by an overwhelming majority (390-33) in the House and by a unanimous vote in the Senate. Congress correctly concluded that without the continued protection of the Act, the significant gains in minority political participation over the last 40 years would be undermined.

The Supreme Court may well determine the constitutionality of Section 5 during its current term. A municipal utility district in Travis County, Texas, filed a lawsuit days after the Voting Rights Act was extended arguing that federal oversight of new voting practices is no longer needed and is now unconstitutional. A three-judge court disagreed and ruled that based upon "the massive amount of evidence Congress collected," Section 5 remains an appropriate response to the problem of continued racial discrimination in voting. The utility district has appealed to the Supreme Court asking it to reverse the decision of the lower court. A number of civil rights organizations, including the ACLU, are participating in the lawsuit to defend the constitutionality of Section 5 of the Voting Rights Act. We have asked the Supreme Court to affirm the lower court's decision so that the voting rights of all Americans remain protected and secure.

In 2006, just weeks before Congress reauthorized the oversight provision, all eight Justices who reached the issue held that states had a compelling interest in complying with Section 5. And in 2008 – nearly two years after the extension – the Court applied Section 5 to a case from Alabama, and no member of the Court suggested that federal oversight was now unconstitutional. One cannot predict with certainty what the Court will decide, but there is no doubt that the Voting Rights Act is a necessary tool to protect the right of all Americans to vote.

Laughlin McDonald is Director of the ACLU Voting Rights Project
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