Congress enacted a Voting Act and required only some States to obtain federal permission before enacting a law related to voting in order to address the longstanding problem of racial discrimination in voting.
The Fifth Amendment is not designed to punish for the past; its purpose is to ensure a better future. To sever that purpose, Congress must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.
Congress took a drastic departure from basic principles of federalism by enacting the Voting Rights Act of 1965. Section 5 of the Act required States to get federal permission before enacting any law related to voting. The Act also applied only to some States, again departing from the principle that all States enjoy equal sovereignty. Congress enacted the Act to address racial discrimination in voting. Data indicates that most States covered by the Act had more African-American voter turnout than that of white. There is no dispute that voting discrimination still exists today.
Does the Act’s extraordinary measures, applied only to some States, continue to satisfy constitutional requirements?
No, our country has changed and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem directly address the current conditions. Because the situation with respect to the voting registration and turnout gap between black and white has substantially narrowed, section 5 of the Voting Rights Act violate the Constitution.
The covered jurisdictions have had a unique history of problems with racial discrimination in voting and voting discrimination still pervades in those jurisdictions. The Voting Rights Act has worked to combat voting discrimination where other remedies had been tried and failed. Particularly effective is the Act’s requirement that teared out second generation barriers such as discrimination against minority voters and racial gerrymandering. Congress has assembled a sizable record that is sufficient to show the effectiveness.
Congress has failed to justify current burdens with a record demonstrating current needs of the Voting Rights Act. By leaving the conclusion unstated, the majority needlessly prolongs the demise of section 5.
Departures from the basic features of our system of government are justified under Katzenbach if such departures are specifically designed to prevent racial discrimination. Nearly 50 years later, situations have changed dramatically. Voter turnout and registration rates now approach parity in the jurisdictions covered by the Act. Blatant discriminatory evasions of federal decrees are rare. There is no dispute that these improvements are largely due to the Act. However, Congress has not eased the restrictions in the Act despite the changed circumstances.