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Those doubts about the reauthorization, whether the preclearance provision was still needed and, if it was, in what form, could make it easier for the justices to toss it out.
“It was clear that the seeds were being sown for a legal challenge,” says Rick Hasen, a law professor at the University of California, Irvine.
Should the court now overturn the preclearance process, congressional supporters would be hard-put to restore it. Republican Jim Sensenbrenner of Wisconsin, who helped drive the 2006 reauthorization as chairman of the House Judiciary Committee, no longer has that leverage. Many of the Republicans who helped him six years ago have left Congress, and the parties are more divided than ever.
“I don’t think it’s an impossibility,” Sensenbrenner says, but it would be “more difficult following a Supreme Court decision than with a congressionally imposed expiration date.”A Pre-Emptive Law
The Voting Rights Act of 1965 was the federal government’s response to nearly a century of race-based voting discrimination, in the form of intimidation, poll taxes and literacy tests, that had lingered after such practices were outlawed by the 15th Amendment during Reconstruction.
It was prompted by a spring of violence. Jimmie Lee Jackson, an unarmed protester, had been shot and killed by Alabama state troopers in February 1965. Police officers then used tear gas and batons to block nearly 600 protesters from marching over the Edmund Pettus Bridge on their way from Selma, Ala., to the state capital in early March. The group reached Montgomery on the third attempt, after Johnson dispatched thousands of soldiers, federal agents and marshals to ensure their safe passage.
During a joint session of Congress just eight days after the first Selma march, Johnson delivered one of the most affecting speeches of his presidency, likening the moment in time to a “turning point in man’s unending search for freedom,” akin to Lexington, Concord and Appomattox.
“What happened in Selma is part of a far larger movement, which reaches into every section and state of America,” Johnson said. “It is not just Negroes but, really, it is all of us who must overcome the crippling legacy of bigotry and injustice. And we shall overcome.”
The Voting Rights Act was unlike any other law in the way that it singled out for pre-emptive enforcement specific places deemed to have a history of discrimination.
Section 4 of the law instructed the government to weigh the past use of tests or devices that restricted voting and evidence of low turnout during the most recent elections in 1964 to figure out which areas would be covered. Section 5 required those areas to clear any changes to their voting procedures with the Justice Department or a federal court.
The preclearance provision was never intended to be permanent. A procedure was included and later expanded that allowed areas to “bail out” if they could prove they no longer should be covered. Originally slated to expire after five years, the provision’s efficacy persuaded Congresses to extend it in 1970, 1975, 1982 and again in 2006.
“This process, which is known as preclearance, has been a very, very powerful tool in combating discrimination for decades,” Thomas Perez, assistant attorney general for Justice’s civil rights division, said during a recent symposium hosted by the George Washington Law Review.