Supreme Court voids key portion of Voting Rights Act as outdated

Obama 'deeply disappointed' by the 5-4 Supreme Court ruling on the landmark civil rights legislation. Justice Ginsburg, in dissent, decries 'hubris' in 'demolition' of the Voting Rights Act.

Jonathan Ernst/Reuters
US Attorney General Eric Holder speaks about the Supreme Court's ruling on Tuesday that struck down part of the 1965 Voting Rights Act designed to protect minority voters, at the Justice Department in Washington, June 25. Under the invalidated provision, Holder's Justice Department reviewed proposed changes to election laws in states and localities with a history of discrimination.

The US Supreme Court struck down a central portion of the Voting Rights Act Tuesday, ruling that Congress overstepped its authority when it reauthorized the landmark civil rights law in 2006 for an additional 25 years.

The majority justices said lawmakers relied on outdated criteria tied to historic civil rights abuses in the 1960s and 1970s rather than conditions as they exist today in the US.

In a 5-to-4 decision, the high court said Congress had failed to demonstrate that current conditions justify the extraordinary remedy under the Voting Rights Act (VRA) of forcing certain state and local governments to obtain pre-approval from Washington before implementing any changes to their election procedures.

The court said Congress must demonstrate that the law’s requirements are necessary to address problems that exist right now, not problems that existed 40 years ago.

“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,” Chief Justice John Roberts wrote in the majority opinion.

In a dissent, Justice Ruth Bader Ginsburg said the majority decision “can hardly be described as an exemplar of restrained and moderate decisionmaking.”

“Quite the opposite,” Justice Ginsburg said. “Hubris is a fit word for today’s demolition of the VRA.”

In a statement from the White House, President Obama said he was “deeply disappointed” by the court’s action.

“Today’s decision invalidating one of its [the VRA’s] 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,” he said.

Tom Perriello of the Center for American Progress said the court had ignored the reality of discrimination in the country.

“The majority overruled a bipartisan commitment to liberty and provided indefensible cover to partisan efforts across the country to rig elections,” Mr. Perriello said in a statement.

Others praised the opinion. “Today’s decision brings the Voting Rights Act into the 21st Century,” said Carrie Severino, chief counsel of the Judicial Crisis Network.

“It is absurd to use limited federal dollars scrutinizing minor changes to voting procedures in Alaska when we could be prosecuting actual instances of voter discrimination and intimidation,” she said.

The Voting Rights Act has been called the most successful civil rights law in US history and the crown jewel of the civil rights movement. But jurisdictions long subject to its provisions complained that they were being unfairly singled out based on an outdated formula fashioned by Congress nearly a half-century ago when racial discrimination in voting was entrenched and pervasive in certain parts of the country.

The court was asked to strike down two sections of the VRA. The first was Section 5, which requires jurisdictions with a history of discrimination in voting to obtain pre-approval from Washington before enacting any changes to voting procedures.

The justices were also asked to examine Section 4 of the statute. That is the formula Congress devised in the 1960s and 1970s to determine which states and other jurisdictions would be subject to the requirements of Section 5.

In its decision, the high court struck down the Section 4 coverage formula as out of touch with current conditions, but left Section 5 and the rest of the VRA intact.

“We issue no holding on [Section 5] itself, only on the coverage formula,” Chief Justice Roberts said.

“Congress may draft another formula based on current conditions,” he said. “Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an extraordinary departure from the traditional course of relations between the States and the Federal Government.”

The decision split the court into familiar conservative-liberal camps. Joining the chief justice on the conservative side were Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito.

In dissent on the liberal side with Justice Ginsburg were Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan;

Beyond the disagreement over whether to invalidate Section 4, the two camps divided sharply over the underlying theme of federalism and whether Congress could justify treating certain states differently based on evidence from the 1960s and 1970s.

“Nearly 50 years later, things have changed dramatically,” Roberts wrote.

“In the covered jurisdictions voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels,” he said.

The chief justice added: “The tests and devices that blocked access to the ballot have been forbidden nationwide for over 40 years.”

Ginsburg countered in her dissent that Congress took improvements into account. “True, conditions in the South have impressively improved since passage of the Voting Rights Act. Congress noted this improvement and found that the VRA was the driving force behind it,” she wrote.

“But Congress also found that voting discrimination had evolved into subtler second-generation barriers, and that eliminating preclearance would risk loss of the gains that have been made,” Ginsburg said.

The opinion marks the second time in four years the high court has agreed to examine the constitutionality of Sections 4 and 5 of the VRA.

Four years ago, in 2009, the court stopped short of invalidating the measures. But the justices made clear in an 8 to 1 decision that the VRA contained constitutional deficiencies that Congress should address.

No legislative action was taken.

Justice Ginsburg said that Congress compiled significant evidence that the VRA’s preclearance requirements were necessary. “The Court should have left the matter where it belongs: in Congress’ bailiwick,” she said.

“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,” she wrote.

The decision stems from a lawsuit filed on behalf of Shelby County, Alabama, challenging the constitutionality of Sections 4 and 5.

At issue in the case, Shelby County v. Holder (12-96), was whether Congress was justified in reauthorizing preclearance procedure for another 25 years – until the year 2031.

The preclearance procedure dates from the VRA’s passage in 1965. Congress continued to rely on the same triggering criteria to determine which jurisdictions would be covered by the act. The law has been reauthorized four times since 1965 – in 1970, 1975, 1982, and 2006.

The 2006 reauthorization featured near-unanimous support with the Senate voting 98 to 0 and the House approving it by a vote of 390 to 33). The measure was signed into law by President George W. Bush.

Until Tuesday, nine states were fully covered by Section 5 of the VRA: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia. The provision also applied to counties and smaller jurisdictions in six other states: California, Florida, Michigan, New York, North Carolina, and South Dakota.

The decision to strike down Section 4 does not end legal protections under the VRA for minority and other voters.

Section 2 of the act remains fully intact. That section authorizes enforcement actions by individuals and/or the federal government to counter discriminatory tactics designed to undercut the right to vote.

The main difference between Section 5 and Section 2 is that Section 5 worked proactively, requiring covered jurisdictions to prove they were NOT discriminating before being allowed to make any changes to the election process. In contrast, Section 2 is largely reactive, authorizing enforcement only after an alleged violation has taken place.

The majority opinion issues a strong invitation to Congress to rewrite the coverage formula in a way that justifies the federal government dividing the sovereign states and treating them differently.

But some analysts doubt whether such an effort could survive the legislative process.

Roberts noted that the court invited Congress to rewrite the coverage formula in its 2009 decision.

“Congress could have updated its coverage formula at that time, but did not do so,” he said.

“Its failure to act leaves us today with no choice but to declare [Section 4] unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.”

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