Supreme Court Guts Voting Rights Act
The U.S. Supreme Court today cut out the heart of the Voting Rights Act, removing a requirement that for states with a history of discriminatory voting policies, governments seek preclearance from the Justice Department before making any changes to their voting laws.
In Shelby County v. Holder, the court in a 5-4 decision eviscerated the provisions of the Act that allowed the government to preemptively block voter suppression attempts and discriminatory gerrymandering.
Nine states had been required to seek preclearance for voting changes, as well certain parts of seven other states. Now the slate has been wiped clean.
Voters who have been discriminated against will still be able to take their case to court to challenge the laws after they’ve been passed.
The county of Shelby, Alabama had challenged Section 5 of the Voting Rights Act, which authorized preclearance. The court instead chose to leave Section 5 alone but instead gut Section 4, which provided a formula for which states should be covered by the rules.
In theory, the government could still apply preclearance rules to jurisdictions that violate some other hypothetical formula of discrimination. In practice, it would take an act of Congress to determine what states or localities should be covered, an occurrence that seems unlikely.
War Against Voting
The majority opinion, penned by Chief Justice John Roberts, acknowledges that voter discrimination exists and should be addressed, but claimed that the methods used to determine where it should apply are outdated. “There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions,” Roberts wrote. In the last 40 years, he said, “voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers.”
The language seems an unusual choice considering that states have spent the past several years passing laws specifically designed to suppress minority voters. In several cases the Voting Rights Act was used by the Justice Department to stop changes that would have kept people from the polls, notably in Texas and South Carolina.
“While there has been progress over the years, new assaults on the right to vote have emerged in many forms and on many fronts recently,” said Ken Thompson, a candidate for District Attorney of Brooklyn, one of the areas that was covered by the preclearance requirement, in a statement. “Federal protections, including the Voting Rights Act’s pre-clearance provision, are still needed to withstand this war against voting. For those at risk of being disenfranchised, this decision is a direct affront to the fundamental principle of ensuring equal access to the democratic process.”
Demolition of the VRA
Justice Clarence Thomas wrote a concurring opinion noting that he would have gone even further and chopped out Section 5 and even the possibility of future preclearance rules for good measure.
Justice Ruth Bader Ginsburg wrote a scathing dissenting opinion, joined by Justices Stephen Breyer, Elena Kagan and Sonya Sotomayor.”“Hubris is a fit word for today’s demolition of the VRA,” she wrote. “When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress’ power to act is at its height.”
She pointed out that Congress had just voted to reauthorize the Act in 2006 by overwhelming majorities, apparently still findings its provisions valid and necessary.
“For a half century, a concerted effort has been made to end racial discrimination in voting,” wrote Ginsburg. “In my judgment, the Court errs egregiously by overriding Congress’ decision.”