Supreme Court Shreds Key Provision of the Voting Rights Act

Matt Berman, Brian Resnick, Matt Vasilogambros and Brian Fung

In a 5-4 decision, the Supreme Court struck down the critical Section 4 of the Voting Rights Act of 1965. The Supreme Court upheld the Justice Department's ability to oversee the voting statutes of counties that have historically restricted the rights of racial minorities, but the high court struck down the map that was used in the original Voting Right Act. Congress, therefore, must create a new map. Chief Justice John Roberts wrote for the majority.

President Obama on Tuesday said he was "deeply disappointed" with the ruling and that "voting discrimination still exists."

The Court says that the opinion "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."

In Roberts' opinion for the majority, he writes:

Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. And voter registration and turnout numbers in the covered States have risen dramatically in the years since.

At the same time, Roberts writes that preclearance for voting laws once made sense:

At the time, the coverage formula—the means of linking the exercise of the unprecedented authority with the problem that warranted" it—made sense.

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But history did not end in 1965. By the time the Act was reauthorized in 2006, there had been 40 more years of it. In assessing the "current need[]" for a preclearance system that treats States differently from one another today, that history cannot be ignored.

Section 4 of the Voting Rights Act was originally instituted as a means of identifying jurisdictions that would be subject to the Act's special provisions. In particular, Section 4 targeted states and districts that had engaged in racially motivated voter suppression. Those that had enacted literacy tests or other "devices" to screen out non-native English speakers and minorities were instructed to suspend these tools, in accordance to a multi-part formula. The formula wound up producing a map of "covered areas" that, now, the Supreme Court has thrown out and given back to Congress.

The chief justice also includes a chart illustrating remarkable improvements invoter turnoutvoter registration since the Voting Rights Act passed:

In a concurring majority opinion, Justice Thomas says that he would strike down Section 5.

However one aggregates the data compiled by Congress, it cannot justify the considerable burdens created by §5…

 

Indeed, circumstances in the covered jurisdictions can no longer be characterized as "exceptional" or "unique." …

 

By leaving the inevitable conclusion unstated, the Court needlessly prolongs the demise of that provision.

In her dissent, Justice Ginsburg says, "In the Court's view, the very success of Section 5 of the Voting Rights Act demands its dormancy."

Justice Ginsburg writes that Congress overwhelming supported a continuation of the map used in the Voting Rights Act. By scrapping it, she writes, the U.S. runs the risk of halting any progress that's already occurred.

First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against back­sliding. Those assessments were well within Congress' province to make and should elicit this Court's unstinting approbation.

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"[T]he Court today terminates the remedy that proved to be best suited to block that discrimination."

Ginsburg also addresses the history of laws that were ineffective at battling voter discrimination, writing that only the Voting Rights Act had properly addresses those concerns:

Early attempts to cope with this vile infection resembled battling the Hydra. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place. This Court repeatedly encountered the remarkable "variety and persistence" of laws disenfranchising minority citizens.

Ginsburg cites Congress' 2006 reauthorization of the Act, which indicated the VRA was both responsible for improvements in voter turnout in the South, and that it had given way to "subtler second-generation barriers" that were much harder to detect. The vote on the reauthorization was 98-0 in the Senate and 390-33 in the House. It extended the law for 25 years and was signed into law by George W. Bush. Ginsburg writes that the Court acts "egregiously" in overriding Congress.

Justice Ginsburg includes a list of eight instances in her dissent of how, since 1990, the preclearance system has worked as intended. One of the examples she states: in 2001, an all white board of a town in Mississippi canceled an election after "an unprecedented number" of black candidates joined the ballots.

She writes:

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.

And, for good measure, one more Ginsburg simile:

Just as buildings in California have a greater need to be earthquake­proofed, places where there is greater racial polarization in voting have a greater need for prophylactic measures to prevent purposeful race discrimination.

Section 5 of the Voting Rights Act, which requires counties with a history of passing laws that target minority voters to seek Justice Department approval when changing voting laws, applies to Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia, along with several other counties and cities across the country.

The case was brought forth by Shelby County, Ala., which claimed that the days of racist voting laws are gone, citing the reelection of a black president. The case argues that these Southern states, which the law applies to, should have the right to independently change their statutes without the Justice Department's approval. The county did not argue that there was racism at one point in the South, which unfairly targeted minority voters.

The Justice Department's position is that there are still several jurisdictions that need to be monitored. Racism, they said, is not over in the country, where voter intimidation and restrictive voting laws still exist. The case was argued on February 28, 2013.

The final opinions of the Court this term—including decisions on the Proposition 8 and Defense of Marriage Act cases—will be handed down Wednesday at 10:00 a.m. 

For more on the chief justice, read National Journal's feature profile from James Oliphant: John Roberts, Revolutionary.

Here are some of the quick reactions to the decision from around the Internet. We'll be updating with more as they come in.

At Balkinization, Indiana University law professor Gerard Magliocca writes:

To my mind, Justice Ginsburg's dissent is correct in calling out the Chief Justice for declining to "update a statute" to save its constitutionality, citing his opinion in Sebelius.

Over at National Review John Fund writes that the decision is "a victory for civil rights."

And reactions from members of Congress:

Correction: An earlier version of this post misstated who wrote the majority opinion. It was the chief justice. The post also mischaracterized a chart as an illustration of voter turnout trends. It depicted voter registration.