WASHINGTON -- When, beginning in 1901, the Supreme Court decided some cases about how the Constitution applied to overseas territories, Mr. Dooley, the meditative bartender created by Finley Peter Dunne, mused that "no matter whether th' constitution follows th' flag or not, th' supreme coort follows th' iliction returns." Actually, the court rarely "follows" election results in the sense of conforming rulings to them. But on the eve of this singular inauguration, the court has agreed to hear a case in which it must follow, in the sense of assess, last November's returns. The case concerns a manifestly anachronistic and therefore now constitutionally dubious provision of the Voting Rights Act of 1965.
That year, because they had used many tactics to suppress voting by blacks, six states and some jurisdictions in other states were required to seek permission -- "pre-clearance" -- from the Justice Department for even minor changes in voting procedures. In 1975, the act was extended to cover Texas and two other states. The act's "bailout" provision, which ostensibly provides a path by which jurisdictions can end federal supervision, is so burdensome as to be often unusable. The pre-clearance requirements, which were originally intended to exist for five years, have been extended four times, most recently in 2006 -- for 25 years. The Senate voted the extension to 2031 unanimously, which is evidence that genuflection had replaced reflection.
Now, however, a Texas utility district that did not exist until 1986 and which has never had a voting-related complaint, says that the bailout provision has been virtually nullified by judicial interpretations. It further argues that the pre-clearance requirement -- arguably the most intrusive law abridging states' sovereignty -- was a response to a vanished emergency and is, after 44 years of racial progress, an indefensible violation of the Constitution's federal structure. The district argues that it "consigns broad swaths of the nation to apparently perpetual federal receivership" based on absurdly out-of-date evidence.
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