Will It Be 1972 Forever?

The question to which the Supreme Court recently gave a mistaken answer was: Has the revolution in race relations since enactment of the 1965 Voting Rights Act rendered the act's Section 5 anachronistic and hence unconstitutional as a no-longer defensible encroachment on the rights of the affected jurisdictions? The court's 8–1 ruling to preserve Section 5 is a reminder how misguided are conservatives' indiscriminate denunciations of "judicial activism."

Clarence Thomas, the court's only black justice, and arguably its most conservative, cast the only vote to strike down Section 5. He did so because of social changes made vivid by the election of the first black president.

Because a number of states and some jurisdictions in others had been ingenious in devising tactics to suppress voting by blacks, the 1965 act required them to seek -permission—"preclearance"—from the Jus-tice Department for even minor changes in voting procedures, such as locating polling places. The act's "bailout" provision, which ostensibly provides a process by which jurisdictions can seek to end federal supervision, is extremely burdensome: Since 1982, only 17 of the more than 12,000 political subdivisions subject to the preclearance requirement have been allowed to bail out.

In 1965, the preclearance requirements were authorized for just five years. But they have been extended four times, most recently in 2006 for 25 years. By 2031, when Congress probably will extend it again, Barack Obama will be collecting Social Security.

The latest electoral data used to justify the 2006 extension was from 1972. Then gasoline cost 36 cents a gallon, the Dow's high was 1036, the most-watched television program was All in the Family, and the winner of the Academy Award for best picture was The Godfather.

In 2006, an Austin, Texas, utility district, which did not even exist until 1987, went to court seeking relief from preclearance. The court held that the bailout provision was unavailable to the district because it does not register its own voters. The district appealed, arguing that no such restriction on bailouts is in the Voting Rights Act, and that if it is, the preclearance requirement is unconstitutional.