Posted by on June 26, 2013 in Blog

By Isaac Levey
Summer 2013 Legal Fellow

The Voting Rights Act of 1965 (VRA) is one of the most important laws the United States has ever enacted. Although the 15th Amendment to the Constitution guaranteed African-Americans the right to vote on the same basis as white voters in 1870, that guarantee did not exist in reality in many states for almost a century after. The VRA gave that guarantee force, and has helped millions of voters – including blacks, Hispanics, and other minorities including Arab Americans – protect the most fundamental right in a democracy: the right to vote. Since 1965 Congress has reauthorized the VRA four times, most recently in 2006. That year, the VRA passed the House of Representatives by a vote of 390-33; it passed the Senate 98-0. In signing the reauthorization into law, President George W. Bush said it reaffirmed America’s commitment to ensuring that “every person is valued and treated with dignity and respect.” Yesterday, this vital piece of civil rights legislation wass annihilated by the Supreme Court, five votes to four.

The Supreme Court decided yesterday, in Shelby County v. Holder, that the most important and effective piece of the VRA is unconstitutional. The key mechanism for implementing the VRA, known as “preclearance,” requires the Department of Justice (DOJ) or a federal court in Washington to approve any new voting procedures enacted by certain states and counties with long histories of discriminatory vote suppression. The preclearance provision is in Section 5 of the Act. Section 4 prescribes a formula based on historical discrimination to determine which states and counties are “covered jurisdictions” subject to this requirement. Yesterday, Chief Justice John Roberts wrote for the Court that the Section 4 formula is so out of date and obsolete that under “current conditions” the burden it places on states’ right to regulate their elections violates the Constitution.

What the Decision Means

The practical consequences of this decision are so disastrous that they should be considered before discussing the myriad legal calamities in the Court’s opinion. Section 5 was enacted after numerous attempts by Congress and the courts to eliminate racially discriminatory voting measures enacted by (mostly) southern states. Every time a new voter suppression device was invalidated, the states would come up with a more ingenious way around the Constitution. Litigation would take years, during which discriminatory and unconstitutional voter-suppression would remain in effect. In essence, the Federal Government spent decades playing catch-up.

Section 5 was the solution. It required the states that had so frequently evaded the Constitution to obtain the Federal Government’s permission before changing their election laws, so that DOJ could take a hard look at any new measure and decide whether the state or county had some legitimate reason for passing it, or if it was just a pretext for illegal discrimination.

The Court eliminated that protection yesterday. With the Section 4 formula gone, Section 5 is inoperative, and until Congress acts to create a new preclearance formula, the preclearance regime does not exist. States are now free to alter their voting regulations and add whatever new restrictions they wish, and the only way to counter illegal laws is to file suit. That takes years, and during that time elections are held under the illegal procedures. Congress could, theoretically, act to create a new preclearance formula, but that is certainly unlikely to happen anytime soon: the Republican House, at least, may have an incentive to go into the 2014 and 2016 elections with no preclearance regime in place. At least for the foreseeable future, minorities’ voting rights are much less secure today than they were yesterday.

The Constitutional Questions Raised by the Voting Rights Act – and the Court’s Unconvincing Answers

At first glance, the idea that the Federal Government’s attempt to protect a constitutional right is unconstitutional seems incomprehensible, and all the more so since the right to vote is probably the most important right one has in a democracy. Certainly rights like freedom of expression and assembly are useless without it, since the power to persuade your friends and neighbors to see issues your way doesn’t help you unless they can join you in voting that way. One might argue that if there is anything Congress should be allowed to do, it should be to secure the right to vote. Indeed the Constitution specifically gives Congress that right, authorizing it to forbid racial discrimination in voting “by appropriate legislation.” And just last week Justice Antonin Scalia, one of the most conservative Justices on the Court, wrote a decision upholding Congress’ expansive power to overrule state laws regulating federal elections.

But for better or for worse, the Supreme Court has determined that the VRA presents serious problems of “state sovereignty.” I have never understood what that phrase means, but apparently it is burdensome for the states to have DOJ certify new election laws before they go into effect (perhaps the other states on the playground are mean to the covered jurisdictions?) In any event, the Court emphasized that treating some states differently than others under the VRA is a “drastic [and] dramatic departure” from principles of federalism and equality among the states. In the original case upholding the VRA, South Carolina v. Katzenbach (1966), the Court said the pervasive history of discriminatory voting procedures in the South justified these strong measures. The core of the Court’s holding yesterday is that conditions have so significantly improved in the South that these measures are no longer needed – or, more precisely, that Congress needs to update the formula it uses to decide what jurisdictions are covered. The old preclearance formula, the Court said, no longer serves to justify the “extraordinary departure from the traditional course of relations between the states and the Federal Government” allegedly caused by the preclearance provision. In essence, the VRA has been so effective that it has enforced itself out of existence.

As others have pointed out, this argument is exceedingly weak. Firstly, very few laws passed by Congress treat all states exactly the same. To take an obvious example, laws that spend money on specific items – whether emergency disaster relief or individual Members’ pork-barrel projects – focus only on the area where the project is located. A law giving tax credits to a specific industry or product (e.g., ethanol processing) disproportionately helps those states that produce the project (e.g., Iowa and other corn-producing states). And a law increasing (or cutting) taxes on the top 1% of income-earners will disproportionately hurt (or help) the states where those earners are concentrated. As long as our states don’t have identical populations, most laws will affect some states more than others, and no one has ever suggested that such statutes violate the Constitution.

But even assuming that there is something suspect about targeting individual states – if, as the Court said, Congress is required to justify legislation of this kind with a strong showing of need – Congress clearly met that burden here. Justice Ruth Bader Ginsburg’s dissent, which is far more fact-intensive and evidence-based than Chief Justice Robert’s abstract discourse on states’ rights and federalism, goes on for pages and pages detailing the plethora of recent voting rights violations Congress found when it reauthorized the VRA in 2006. Examples included a town in Mississippi cancelling an upcoming election because of high rates of black voter registration, and openly racist attempts by Alabama legislators to block a referendum from the ballot because it might increase black turnout. These all took place in the last few years, and without the preclearance mechanism there would be no way to stop them before the election. A voter could only file a lawsuit that might take years, by which time it would be too late to afford relief. No matter, the Court said. Congress was required to “start from scratch” and create a new preclearance formula in 2006, whether or not the current one was still rational or effective.

The Court’s reasoning in Shelby County is as follows: the VRA was okay in 1965, because it was attacking 100 years of racial discrimination in voting. Now, thanks only to the VRA, there is no longer endemic voting discrimination. Therefore, the VRA is no longer okay. As Justice Ginsburg put it, “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.” The practical consequences of the decision are worse than the atrocious legal reasoning. The Court has wiped out a landmark legal provision that guaranteed the right to vote to millions of Americans.

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