A divided Supreme Court on Tuesday invalidated a crucial component of the landmark Voting Rights Act of 1965, ruling that Congress has not taken into account the nation’s racial progress when singling out certain states for federal oversight.
The vote was 5 to 4, with Chief Justice John G. Roberts Jr. and the other conservative members of the court in the majority.
The court did not strike down the law itself or the provision that calls for special scrutiny of states with a history of discrimination. But it said Congress must come up with a new formula based on current data to determine which states should be subject to the requirements.
Proponents of the law, which protects minority voting rights, called the ruling a death knell. It will be almost impossible for a Congress bitterly divided along partisan lines to come up with such an agreement, they said.
There could be immediate consequences from the court’s ruling. Just hours after the ruling, Texas Attorney General Greg Abbott said his state will move forward with a voter-identification law that had been stopped by a panel of federal judges and will carry out redistricting changes that had been mired in court battles.
The act covers the Southern states of Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, as well as Alaska, Arizona and parts of seven other states. It requires them to receive “pre-clearance” from the U.S. attorney general or federal judges before making any changes to election or voting laws.
Roberts said the court had warned Congress four years ago, in a separate case, that its decision to continue using a formula based on “40-year-old facts” would lead to serious constitutional questions. “Congress could have updated the coverage formula at that time, but did not do so,” Roberts wrote. “Its failure to act leaves us today with no choice but to declare [the formula] unconstitutional.”
He added, “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.” He was joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.
One sign of racial progress has been the election of the nation’s first African American president, who said Tuesday that he was “deeply disappointed” in the decision.
“For nearly 50 years, the Voting Rights Act . . . has helped secure the right to vote for millions of Americans,” President Obama said in a statement. “Today’s decision invalidating one of its core provisions upsets decades of well-established practices that help make sure voting is fair, especially in places where voting discrimination has been historically prevalent.”
In Virginia, the state government presumably will no longer need approval from Washington for its new voter-ID law. The law could still be subject to a legal challenge, but the burden would be shifted to plaintiffs to show that the law would hurt minority voters.
Attorney General Eric H. Holder Jr., who called the decision a “serious setback for voting rights,” said his department will “continue to carefully monitor jurisdictions around the country for voting changes that may hamper voting rights.” “Let me be very clear,” Holder said. “We will not hesitate to take swift enforcement action, using every legal tool that remains available to us, against any jurisdiction that seeks to take advantage of the Supreme Court’s ruling by hindering eligible citizens’ full and free exercise of the franchise.”
Justice Ruth Bader Ginsburg emphasized the liberals’ disagreement with the decision by reading her dissent from the bench. She said the majority not only misread the lessons of the nation’s racial progress but also inserted itself into a decision that the Constitution’s Civil War amendments specifically leave for Congress.
“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,” Ginsburg wrote in her dissent. She noted that the 2006 extension of the Voting Rights Act, and the continued use of the formula in Section 4, was approved unanimously in the Senate and signed by President George W. Bush. “What has become of the court’s usual restraint?” she asked from the bench.
She invoked the Rev. Martin Luther King Jr. and the march from Selma to Montgomery. “ ‘The arc of the moral universe is long,’ he said, ‘but it bends toward justice’ if there is a steadfast commitment to see the task through to completion,” Ginsburg said. “That commitment has been disserved by today’s decision.”
She was joined in dissent by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
Roberts, too, was ready with history lessons. In his opinion, he noted that in 1965, white voter registration in Mississippi was nearly 70 percent and black registration stood at 6.7 percent. By 2004, a greater percentage of blacks than whites were registered to vote in the state, and that was true in five of the six states originally covered by Section 5. “These are the numbers that were before Congress when it reauthorized the act in 2006,” he said.
Roberts cited the deaths of men registering others to vote in Philadelphia, Miss., and “Bloody Sunday” in Selma, Ala. “Today both of these towns are governed by African-American mayors,” Roberts wrote. Yet the “extraordinary and unprecedented features” of Section 5, along with the coverage formula, were reauthorized “as if nothing had changed.”
Ginsburg said that the longtime formula Congress decided to continue using still identified the areas most in need of federal oversight. Between 1982 and 2006, she said, the Justice Department blocked more than 700 voting changes on the grounds that they would be discriminatory. She said the court’s ruling does not accommodate the evidence Congress amassed to justify reauthorization. “One would expect more from an opinion striking at the heart of the nation’s signal piece of civil rights legislation,” Ginsburg wrote.
Roberts countered: “Congress did not use the record it compiled to shape a coverage formula grounded in current conditions. It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day.”
Reaction to the ruling was impassioned. Edward Blum, who coordinated the current challenge to Section 5 and a previous one in 2009, said the decision “restores an important constitutional order to our system of government which requires that all 50 states are entitled to equal dignity and sovereignty. Our nation’s laws must apply uniformly to each state and jurisdiction.”
Civil rights groups were outraged. “I think we should not soft-pedal what is an egregious betrayal of minority voters,” said Sherrilyn Ifill, head of the NAACP Legal Defense Fund, whose lawyers participated in the case.
In his opinion, Roberts noted that the decision “in no way affects the permanent, nationwide ban on racial discrimination in voting” found in another part of the Voting Rights Act. And he said that “Congress may draft another formula based on current conditions.”
But there appeared to be little bipartisan appetite for that on Capitol Hill, and some lawmakers said such an attempt would be unsuccessful. “As long as Republicans have a majority in the House and Democrats don’t have 60 votes in the Senate, there will be no pre-clearance,” said Sen. Charles E. Schumer (D-N.Y.). “It is confounding that after decades of progress on voting rights, which have become part of the American fabric, the Supreme Court would tear it asunder,” Schumer added.
The specific challenge before the court came from Shelby County, Ala., a fast-growing, mostly white suburb south of Birmingham.
A brief filed by the state of Alabama said bloody resistance to African Americans’ voting rights was “particularly responsible” for making Section 5 necessary.
The state’s attorney general, Luther Strange, said in the brief that Alabama had a well-earned place among the covered jurisdictions when the act was passed in 1965 and reauthorized in 1970, 1975 and 1982. But the 2006 reauthorization, which extended federal control for an additional 25 years, went too far, he said. “It is time for Alabama and the other covered jurisdictions to resume their roles as equal and sovereign parts of these United States,” the brief said.
This article originally appeared in The Washington Post.
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