Today, the United States Supreme Court in Shelby County v. Holder, No. 12-96, struck down Section 4 of the Voting Rights Act and effectively gutted one of the nation’s most important and successful civil rights laws.
The Voting Rights Act of 1965 (VRA) “is no ordinary legislation,” Justice Ruth Bader Ginsburg wrote in her dissent, joined by Justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. She summarized her opinion from the bench today in an unusual expression of deep disagreement. “It is extraordinary because Congress embarked on a mission long delayed and of extraordinary importance: to realize the purpose and promise of the Fifteenth Amendment,” which barred racial discrimination in voting and authorized Congress to enforce it.
The VRA has successfully blocked voting discrimination by requiring approval from the Justice Department or a federal court for all changes to voting laws in the regions of the country with the most aggravated records of rank discrimination against minority voting rights. Section 5 contains the “preclearance” requirement; Section 4 is the “coverage formula” that determines which jurisdictions must obtain preclearance. Today’s decision struck down only Section 4 but without it, Section 5 is meaningless — unless Congress passes new legislation for determining which states would be covered.
Chief Justice John G. Roberts delivered the majority opinion, joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito. The majority ruled that Section 4 is unconstitutional, reasoning that the formula devised in 1965 and since revised and extended several times by Congress is invalid because “[t]he conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.”
Chief Justice Roberts wrote that, since 1965, “largely because of the Voting Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers.” Although the Court usually defers to Congress in these matters, the majority concluded that when Congress reauthorized the law in 2006, it ignored these developments and left in place a formula “based on 40-year-old facts having no relationship to the present day.”
Yet voting discrimination – and the need for the VRA – continues in the present day, the dissenters pointed out. Indeed, “jurisdictions covered by the preclearance requirement continued to submit, in large numbers, proposed changes to voting laws that the Attorney General declined to approve, auguring that barriers to minority voting would quickly resurface were the preclearance remedy eliminated.”
And first-generation forms of discrimination like voting tests and poll taxes have receded only to be supplanted by second-generation barriers, such as racial gerrymandering (redrawing legislative districts in an “effort to segregate the races for purposes of voting”) and at-large voting in cities with a sizable Black minority (which effectively eliminates the potency of the minority’s votes by permitting the overall majority to control the election of each city council member).
“The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective,” wrote Justice Ginsburg. “The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. With that belief, and the argument derived from it, history repeats itself.”