Skip to main content
Part of complete coverage from

Voting Rights Act and the South on trial

By Jeffrey Toobin, CNN Senior Legal Analyst,
updated 12:33 PM EST, Fri November 23, 2012
Emmitt Coleman, 81, relaxes after voting in Alabama. An Alabama county has taken the Voting Rights Act to the Supreme Court.
Emmitt Coleman, 81, relaxes after voting in Alabama. An Alabama county has taken the Voting Rights Act to the Supreme Court.
STORY HIGHLIGHTS
  • Jeffrey Toobin: 1965 Voting Rights Act secured voting rights for blacks in the South
  • Alabama county takes it to Supreme Court, saying act is unconstitutional
  • Toobin: Is it still necessary? Does discrimination still exist in the South?
  • Toobin: Ruling will be close, with Chief Justice Roberts likely to oppose U.S. argument

Editor's note: Jeffrey Toobin is a senior legal analyst for CNN and a staff writer at The New Yorker magazine, where he covers legal affairs. He is the author of "The Oath: The Obama White House and the Supreme Court."

(CNN) -- How much has the South changed?

That's the question at the heart of one of the most important cases the Supreme Court will take up this year.

The case weighs the fate of one of the most important laws in American history: the Voting Rights Act of 1965. A century after the Civil War, Congress created that law to give African Americans the right to vote, not just on paper, but in fact.

The key provision was Section 5, which decreed that jurisdictions with histories of discrimination, mostly in the South, had to get Justice Department approval before they changed any aspect of their voting rules, right down to the location of polling places. There is little doubt that, in the years immediately after 1965, the Voting Rights Act achieved a revolution in voting rights for African-Americans in the South. In subsequent years, Congress has reauthorized the law several times, most recently in 2006.

Jeffrey Toobin
Jeffrey Toobin

Increasingly, covered jurisdictions have found the process of submitting their changes to the Justice Department, which is known as "pre-clearance," as a demeaning anachronism, and Shelby County, Alabama, went to court to argue that the Voting Rights Act was unconstitutional. The court will hear the case, Shelby County v. Holder, early next year.

Become a fan of CNNOpinion
Stay up to date on the latest opinion, analysis and conversations through social media. Join us at Facebook/CNNOpinion and follow us @CNNOpinion on Twitter. We welcome your ideas and comments.



Civil rights trailblazer promotes voting
Should felons be allowed to vote?
State law sparks voting rights concerns

The Obama administration strongly supports the act, but the president's election -- and re-election -- may be among the best arguments against the law. There is little doubt that African-Americans suffered pervasive discrimination in the 1960s, especially at the polls. But now we have a black president. Doesn't that prove that African-Americans have reached at least rough equality in the electoral realm?

Not necessarily. When reauthorizing the law, Congress compiled a record of thousands of pages documenting the legacy of discrimination that lingers in the covered jurisdictions. The government asserts that the justices should defer to Congress in deciding whether the problem of voting rights is solved.

Still, the Obama administration has to deal with a very important likely adversary in this case: Chief Justice John Roberts. The court heard a similar challenge to the Voting Rights Act in 2009, and the court sidestepped the core issue, resolving the case on procedural grounds. But there was little doubt, in Roberts' questions at oral argument or in his opinion, that he believes, constitutionally speaking, times have changed. The chief is unlikely to look for a procedural way out of controversy for a second time.

The controversy over voter suppression in the 2012 elections might have a paradoxical effect on the future of the law. Democrats argued that the efforts to impose Voter ID requirements and the like amounted to discrimination against African-Americans and thus could be seen as justification for preserving the Voting Rights Act.

But several of the acts of alleged voter suppression took place in states -- like Pennsylvania and Ohio -- that are not covered by Section 5 of the act. That may help the plaintiff's core argument: Times have changed in the South.

In any event, it's likely to be a close vote. What happens if the law is overturned? The answer may be: not much. The South may not need the act anymore to protect the voting rights of minorities. If that's true, that would prove the plaintiffs' main argument in this case.

Follow us on Twitter @CNNOpinion.

Join us on Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Jeffrey Toobin.

ADVERTISEMENT
Part of complete coverage on
updated 6:10 PM EST, Mon November 24, 2014
If Obama thinks pushing out Hagel will be seen as the housecleaning many have eyed for his national security process, he'll be disappointed, says David Rothkopf.
updated 8:11 AM EST, Tue November 25, 2014
The decision by the St. Louis County prosecuting attorney to announce the Ferguson grand jury decision at night was dangerous, says Jeff Toobin.
updated 3:57 AM EST, Tue November 25, 2014
China's influence in Latin America is nothing new. Beijing has a voracious appetite for natural resources and deep pockets, says Frida Ghitis.
updated 4:51 PM EST, Mon November 24, 2014
Iranian President Hassan Rouhani speaks during a press conference in the capital Tehran on June 14, 2014.
The decision to extend the deadline for talks over Iran's nuclear program doesn't change Tehran's dubious history on the issue, writes Michael Rubin.
updated 2:25 PM EST, Fri November 21, 2014
Maria Cardona says Republicans should appreciate President Obama's executive action on immigration.
updated 7:44 AM EST, Fri November 21, 2014
Van Jones says the Hunger Games is a more sweeping critique of wealth inequality than Elizabeth Warren's speech.
updated 6:29 PM EST, Thu November 20, 2014
obama immigration
David Gergen: It's deeply troubling to grant legal safe haven to unauthorized immigrants by executive order.
updated 8:34 PM EST, Thu November 20, 2014
Charles Kaiser recalls a four-hour lunch that offered insight into the famed director's genius.
updated 3:12 PM EST, Thu November 20, 2014
The plan by President Obama to provide legal status to millions of undocumented adults living in the U.S. leaves Republicans in a political quandary.
updated 10:13 PM EST, Thu November 20, 2014
Despite criticism from those on the right, Obama's expected immigration plans won't make much difference to deportation numbers, says Ruben Navarette.
updated 8:21 PM EST, Thu November 20, 2014
As new information and accusers against Bill Cosby are brought to light, we are reminded of an unshakable feature of American life: rape culture.
updated 5:56 PM EST, Thu November 20, 2014
When black people protest against police violence in Ferguson, Missouri, they're thought of as a "mob."
updated 3:11 PM EST, Wed November 19, 2014
Lost in much of the coverage of ISIS brutality is how successful the group has been at attracting other groups, says Peter Bergen.
updated 8:45 AM EST, Wed November 19, 2014
Do recent developments mean that full legalization of pot is inevitable? Not necessarily, but one would hope so, says Jeffrey Miron.
updated 8:19 AM EST, Wed November 19, 2014
We don't know what Bill Cosby did or did not do, but these allegations should not be easily dismissed, says Leslie Morgan Steiner.
updated 10:19 AM EST, Wed November 19, 2014
Does Palestinian leader Mahmoud Abbas have the influence to bring stability to Jerusalem?
updated 12:59 PM EST, Wed November 19, 2014
Even though there are far fewer people being stopped, does continued use of "broken windows" strategy mean minorities are still the target of undue police enforcement?
updated 9:58 PM EST, Mon November 17, 2014
The truth is, we ran away from the best progressive persuasion voice in our times because the ghost of our country's original sin still haunts us, writes Cornell Belcher.
updated 4:41 PM EST, Tue November 18, 2014
Children living in the Syrian city of Aleppo watch the sky. Not for signs of winter's approach, although the cold winds are already blowing, but for barrel bombs.
updated 8:21 AM EST, Mon November 17, 2014
We're stuck in a kind of Middle East Bermuda Triangle where messy outcomes are more likely than neat solutions, says Aaron David Miller.
updated 7:16 AM EST, Mon November 17, 2014
In the midst of the fight against Islamist rebels seeking to turn the clock back, a Kurdish region in Syria has approved a law ordering equality for women. Take that, ISIS!
updated 11:07 PM EST, Sun November 16, 2014
Ruben Navarrette says President Obama would be justified in acting on his own to limit deportations
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT