The Supreme Court struck down Section 4 of the Voting Rights Act in Shelby County v. Holder on Tuesday. Chief Justice John Roberts wrote the majority opinion in the 5-to-4 decision. The court found that the VRA's formula for deciding which jurisdictions should be subject to preclearance is unconstitutional, SCOTUSblog explains, because while the formula was rational in the 1960s, it's not anymore. In other words, things are different in the South.
Shelby County, Alabama challenged Section 5 of the VRA, which requires that states and counties with a history of trying to block minorities from voting get pre-clearance from the Justice Department to change any voting laws — from the requirements to register to vote to the location of a polling station. Section 4 is the formula that determines what places Section 5 applies to. The majority opinion says, "Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2. We issue no holding on [Section] 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions." Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito joined Roberts to vote strike down the decision. (In his concurring opinion, Thomas said he would strike down Section 5, too.) Section 4 is merely a victim of the VRA's success, the court said: "There is no doubt that these improvements are in large part because of the Voting Rights Act. The Act has proved immensely successful at redressing racial discrimination and integrating the voting process."
Justices Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented. Ginsberg wrote, "The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective... Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."
What is the Section 4 formula? The formula was originally based on these criteria: 1) Did the jurisdiction use a law like a literacy test to keep people from registering to vote? 2) Did less than 50 percent of the eligible population register to vote in 1964, or did less than 50 percent of those people vote in a presidential election? If the answer to these questions was yes, then states and other jurisdictions were subject to preclearance. In 1975, The New York Times' Adam Liptak explains, Congress added "language minority groups" to cover jurisdictions that only issued ballots in English even though they had many non-English speakers.
While the majority opinion issued on Tuesday says Congress is free to write a new formula to reflect current conditions, it seems unlikely Congress will act. SCOTUSblog's Amy Howe explains: "Thus, although Section 5 survives, it will have no actual effect unless and until Congress can enact a new statute to determine who should be covered by it." Above at left is a map of places covered by the VRA, and, because some counties are hard to see on the map, here's a list of covered jurisdictions from the Justice Department. The Obama administration drafted a plan to deal with the Supreme Court striking down the VRA in 2009, the Huffington Post reported in March, which would have had Congress update the Section 4 formula. But back in 2009, Democrats had a majority in both chambers of Congress. Because Republicans control the House, getting that legislation passed would be more difficult. In a statement, Obama said he was "deeply disappointed" by the court's ruling. "While today's decision is a setback, it doesn't represent the end of our efforts to end voting discrimination," Obama said. "I am calling on Congress to pass legislation to ensure every American has equal access to the polls."
There were hints this decision was coming earlier this month, when the court struck down an Arizona law requiring people to show proof of citizenship beyond the federal requirements to register to vote. Some thought this was the court giving itself room to strike down the VRA by showing it wasn't radically anti-voter protection. And the court had been hinting for years that the VRA would not survive. Chief Justice John Roberts wrote in 2009 that "Things have changed in the South." The old Jim Crow laws were gone: "Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels."
While the South has ended its Jim Crow laws — things like poll taxes and reading tests that poll workers applied to blacks to keep them from voting — the 2012 election showed that some officials are still trying to think up new tricks to keep certain people from voting. Many state legislatures enacted voter ID laws, which have a greater impact on minorities — and a couple explicitly said this was to help Republicans win the election. The chair of the Franklin County, Ohio, Republican Party, defended laws restricting polling hours and requiring photo ID, saying, "I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban — read African-American — voter-turnout machine… Let’s be fair and reasonable." But then again, Ohio was not covered by Section 4 of the VRA.
What does this mean for voting rights today? Georgia Rep. John Lewis, who was a Freedom Rider in the Civil Rights era, said, "What the Supreme Court did was to put a dagger in the heart of the Voting Rights Act." An NAACP official said, "Today will be remembered as a step backwards in the march towards equal rights." The court's ruling essentially ended the VRA's Section 5, unless Congress unexpectedly takes action. But whether you think the South (and other areas) has changed enough, you can't claim the it hasn't changed at all. New York University election law expert Rick Pildes tells The Washington Post's Dylan Matthews, "No one in their right mind can think that there’s a risk that we’re on the verge of going back to the world that existed before 1965." The issue the Justice Department has to tackle these days is not ensuring that minorities aren't kept from voting, he says, but ensuring that minorities are well represented in legislatures. The VRA's Section 2 allows redistricting plans to be challenged in federal court. But of course, that's after those laws have been enacted, instead of before, as preclearance requires.
Tomorrow, the Supreme Court will decide the constitutionality of gay marriage bans.
- IN-DEPTH: Is There Any Chance Congress Will Save the Voting Rights Act?
- WHAT THEY'RE SAYING: Conservative Pundits Skip the VRA Victory Lap
(Above left, President Lyndon Johnson signs the VRA into law in 1965. Photo via Associated Press.)