Is the South still more racist than the rest of the country? Malcolm X used to say in that regard that there was only "down South" and "up South" for black folks.
Times have changed. The question has reached the Supreme Court — and each side is using President Barack Obama's election to back up its case.
One side argues that Obama's election means that the 1965 Voting Rights Act can stop imposing special penalties on the South. The other side argues that the special provisions in question make racial breakthroughs like Obama's election possible.
In fact, both sides are right. Legal experts have warned Congress repeatedly that, if they didn't update the law to take its own success into account, as well as the nation's changing racial and ethnic landscape, the Supremes might well change the law for them — or even strike it down.
It is important for me to point out, contrary to pernicious urban legends flying around the Internet, that we're not talking about the entire Voting Rights Act. Voting rights for African Americans are not in danger of being repealed.
At issue is one controversial provision called "Section 5." It requires nine mostly Southern states and "covered jurisdictions" in some other states to submit any proposed redistricting plans or changes in voting rules to the Justice Department's Civil Rights Division for an approval process called "preclearance."
These rules can include changes as local as the location of polling places to the makeup of districts in state legislatures.
Since Section 5 was the deepest and most drastic federal intrusion into state and local government affairs since Reconstruction, Congress made it temporary. Yet it has repeatedly been extended and even broadened to protect Hispanics and other "language minorities," most recently in 2006.
The new question before the Supreme Court is whether this special Southern-only "pre-clearance" provision is still needed. "The America that has just elected Barack Obama is not the same America that existed when Section 5 was put into place," argues Gregory S. Coleman, a former Texas solicitor general in the suit he filed on behalf of an Austin utility district.
"At some point you have to say we've come far enough," Coleman argues. "Why do we and the other affected jurisdictions have to have the federal government looking over our shoulder?"
Have we come far enough? In their questions, the court's four conservative members plus swing-voter Justice Anthony M. Kennedy seemed to agree with him.
Is the "sovereignty of Georgia" entitled to less respect than "the sovereign dignity of Ohio?" asked Justice Kennedy.
"Why didn't (Congress) extend Section 5 to the entire country?" asked Justice Samuel A. Alito Jr.
With that, Alito sounded almost like Malcolm X's sarcastic observation. Yet he raised a good point. As Chief Justice John Roberts noted, court filings show liberal Massachusetts has a lower rate of registering Latino voters than conservative Texas.
Even so, records also show the South is not quite out of the woods. The 2006 version of Section 5 was upheld by a special three-judge federal court in Washington with a very persuasive opinion by Judge David Tatel.
Citing a large body of evidence compiled by congressional committees, Tatel found that old-style voting discrimination still persists in at least some of the many localities covered by Section 5, and there might well be more were it not for Section 5. Other defenders point out that it passed the Senate and House overwhelmingly and that few of the "covered jurisdictions" have joined in challenges to it.
If the Supreme Court were to strike down Section 5, the decision would not necessarily affect the remainder of the Voting Rights Act, but it would make local election changes in the covered states harder to challenge.
That could give Congress an important opportunity. It could debate and update its voting rights laws to keep up with changing times.
