This morning in an historic decision, the Supreme Court struck down a key provision of the Voting Rights Act of 1965 in Shelby County v. Holder. In the 5-4 majority opinion authored by Chief Justice John Roberts, the Court held that “Section 4 of the Voting Rights Act is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to preclearance.”
The “preclearance” meant that six states and several other jurisdictions were previously required to seek the approval of the Justice Department for any and all laws affecting voting. (Needless to say, this is the same Justice Department of AP, James Rosen, and Fast & Furious infamy.) But the Court argued that these preclearance measures were out-of-date, unfairly applying to jurisdictions that no longer hold discriminatory practices. Roberts wrote that this requirement upon inception had been recognized as “a drastic departure from basic principles of federalism” but also as a necessary one given the “entrenched racial discrimination in voting” at the time.
Nearly 50 years later, [the preclearance measures] are still in effect; indeed, they have been made more stringent, and are now scheduled to last until 2031. There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions. By 2009, “the racial gap in voter registration and turnout [was] lower in the States originally covered by Section 5 than it [was] nationwide.” … Since that time, Census Bureau data indicate that African-American voter turnout has come to exceed white voter turnout in five of the six states originally covered by Section 5, with a gap in the sixth State of less than one half of one percent. (Emphasis added.)
Roberts also unambiguously stated: “At the same time, voting discrimination still exists; no one doubts that.” But this decision came down to whether the current “extraordinary measures” were still warranted given the changed circumstances 50 years later. The majority found that that the “coverage formula” was not constitutionally warranted and needed to be updated.
As USA Today notes, this decision didn’t “invalidate the Voting Rights Act’s ‘preclearance’ requirement outright. Instead, Roberts said Congress failed to update the formula it used to determine which states and counties would be covered by that requirement.” And this failure left the Court “with no choice” but to strike down Section 4 as unconstitutional.
Roberts went on to note the major strides in racial equality over the last 50 years, specifically citing the closed gap between blacks and whites with regards to voter registration and the countless minority elected officials in the six states covered by Section 5. He then wrote that there’s “no doubt that these improvements are in large part because of the Voting Rights Act” (original italics). But the problem is that the VRA has not since “eased the restrictions in Section 5 or narrowed the scope of the coverage formula” in Section 4. They have been maintained “as if nothing had changed” and have “grown even stronger” with the 25-year extension, far outlasting the original five-year limit.
Roberts made the crucial point:
In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were. (Emphasis added.)
Interestingly, Justice Clarence Thomas filed a concurring opinion in which he held that the same arguments should be applied to find Section 5 entirely unconstitutional. He restated a claim he had made in a previous case in which he had concurred: “‘The extensive pattern of discrimination that led the Court to previously uphold Section 5 as enforcing the Fifteenth Amendment no longer exists.'” Thomas concluded by saying that the Court’s “own opinion compellingly demonstrates that Congress has failed to justify ‘”current burdens”‘ with a record demonstrating ‘”current needs.”‘”
In dissenting, Justice Ruth Bader Ginsburg — joined by Justices Breyer, Sotomayor, and Kagan — argued that the Court had wrongly struck down a provision whose “continuance would facilitate completion of the impressive gains thus far made” and “would guard against backsliding.”
Much of the dissent did not take into account the current arbitrariness of the division that still separates the six states (with several other jurisdictions) from the rest of the nation. She instead took the opportunity to cite past possible barriers to minority voting that would have caused problems had the preclearance requirement not been in effect — but only in the covered jurisdictions.
In response to the dissent, Roberts cited two problems: First, that “the dissent refuses to consider the principle of equal [state] sovereignty” and second, that the dissent wrongly “describes current levels of discrimination as ‘flagrant,’ ‘widespread,’ and ‘pervasive.'”
To be explicitly clear, Roberts argued that the “decision in no way affects the permanent, nation-wide ban on racial discrimination in voting found in Section 2,” and that Congress still has the ability to “draft another formula based on current conditions” and that are applied equally to all states.
This ruling simply shifts the burden of proof: The jurisdictions are no longer assumed to be guilty of discriminatory practices until proven innocent and are on equal footing with all other states.
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