Tuesday, June 25, 2013

Supreme Court Strikes Down Part of the Voting Rights Act

In the case of Shelby County v. Holder (for background on this case click HERE), the Supreme Court ruled today that times are a changin' with respect to racial discrimination.  The 5-4 majority opinion written by Chief Justice John Roberts split down ideological lines over whether states with a history of discrimination must continue to get permission from the federal government before they will be allowed to change any aspect of their voting laws.  As you may recall during this most recent 2012 Presidential election, the Department of Justice ("DOJ"), led by Attorney General Eric Holder, was able to block South Carolina's attempt to implement a voter ID law which would have prevented many Blacks from casting their ballots. That is just one example of how the DOJ is able to use Section 5 of the Voting Rights Act in order to stop states from discriminating against voters on the basis of race.  But according to today's ruling, the formula contained in Section 4 of the Voting Rights Act (a formula which allows the federal government to determine which states must get permission and which states don't) is outdated and needs to be replaced by Congress.  We break down today's decision and what it means for the future of the Voting Rights Act after the jump.

The Voting Rights Act ("VRA") was enacted by Congress and signed into law by President Lyndon B. Johnson in order to stop the racial voter suppression methods that were rampant in some states.  It draws its power from the 15th Amendment to the US Constitution which says that no state can prohibit voting on the basis of race.  Although it primarily applies to states in the South, the VRA covers counties and cities in non-southern states such as California, New York, South Dakota and Michigan.  Section 2 of the VRA basically declares that Congress will not allow any state to block the right to vote on the basis of race.  Section 4 of the VRA provides the formula for determining which states are officially labeled by the federal government as trouble makers (formally known as "covered jurisdictions"). Section 5 of the VRA requires the trouble makers to then check in or get what is known as "preclearance" from the federal government before they can change any aspect of their voting laws.  This ensures that these states cannot take any action or make any amendments to their voting laws (such as requiring voter ID) which might have an unfair impact on minority voters.  Because this is a drastic measure, Congress built in a time limit on Section 5 which requires it to be re-approved by Congress every so many years.  It was last re-approved by Congress and re-signed into law by President George Bush in 2006 for an additional 25 years.

Chief Justice John Roberts starts off his 24-page majority opinion by acknowledging the important history of the VRA: 

The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem.

But it quickly goes downhill from there as he constantly reminds us that Sections 4 and 5 of the VRA were meant to be temporary.  Roberts argued that in 1982 and then again in 2006, Congress reauthorized the VRA for 25 years but did not update the method in Section 4 for determining the "trouble maker" states, counties or cities. In other words, according to Roberts, these states are being punished today for things they did back in in the 1960's and 70's.  Moreover, he argued that States are supposed to enjoy sovereignty on a level equal to that of the federal government.  In other words, the VRA is, according to Roberts, a radical measure and is only allowed to infringe on State sovereignty because it is a temporary Act with a set expiration date.  This further bolsters Roberts' general theme that Section 4 of the VRA is outdated: 

Nearly 50 years later, things have changed dramatically.  Shelby County contends that the preclearance requirement...is now unconstitutional.  Its arguments have a good deal of force.  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." [internal citations omitted] ...There is no doubt that these improvements are in large part because of the Voting Rights Act.  The Act has proved immensely successful at redressing racial discrimination and integrating the voting process...Yet the Act has not eased the restrictions in [Section 5] or narrowed the scope of the coverage formula in [Section 4] along the way.  Those extraordinary and unprecedented features were reauthorized - as if nothing had changed...Coverage today is based on decades-old data and eradicated practices...In 1965, the States could be divided into two groups: those with a recent history of voting tests and lower 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.

Roberts concludes by ruling that Section 4 -- and only Section 4 -- of the VRA is unconstitutional.  He further ruled that Congress must go back and draft another formula for Section 4 "based on current conditions."

Justice Thomas, agreeing with Justice Roberts about striking down Section 4 of the VRA, wrote his own 3-page concurrence to say that, if it were up to him, he would have gone even further by striking down Section 5 as well.  He argued that:

Today, our Nation has changed.  The conditions that originally justified [Section 5] no longer characterize voting in the covered jurisdictions...In spite of these improvements, however, Congress increased the already significant burdens of [Section 5]...It is, thus, quite fitting that the [Supreme] Court repeatedly points out that this legislation is "extraordinary" and "unprecedented" and recognizes the significant constitutional problems created by Congress' decision to raise the bar that covered jurisdictions must clear, even as the conditions justifying that requirement have dramatically improved...The extensive pattern of discrimination that led the [Supreme] Court to previously uphold [Section 5] as enforcing the Fifteenth Amendment no longer exists...While this Court claims to "issue no holding on [Section 5] itself", its own opinion compellingly demonstrates that Congress has failed to justify "current burdens" with a record demonstrating "current needs"...For the reasons stated in the [Supreme] Court's opinion, I would find [Section 5] unconstitutional.  

Ginsburg, joined by Justices Breyer, Sotomayor and Kagan, wrote a 37-page dissenting opinion laying into the majority and arguing that it should be Congress -- and not the Supreme Court -- which determines whether times really have changed enough to alter the VRA.  She points out that in 2006, an overwhelming majority voted to continue Sections 4 and 5 of the VRA based on the same data which Chief Justice Roberts cited to in his opinion, yet Congress did not choose to change the VRA.  As she argued:

Those assessments were well within Congress' province to make and should elicit this Court's unstinting approbation.

She went on to note that, contrary to Justice Thomas' take on the world, racial voter discrimination still exists today.  She pointed out the seemingly inconsistent position taken by Roberts and the majority that improvements have been made by the VRA so therefore the VRA should be ended.  In other words, Ginsburg takes the position that although times may be a changin', we're not quite to the promised land yet.  She also pointed out that Sections 4 and 5 have allowed the DOJ to block several attempts to suppress the vote that have taken place as recently as the 2012 election.  She also observed that these suppression efforts have and continue to evolve from what we saw 5, 10 or even 25 years ago.  In other words, when people don't want Blacks or other minorities to vote, they will come up with new ways to achieve that goal.  She concluded by arguing that:

The sad irony of today's decision lies in its utter failure to grasp why the VRA has proven effective.  The [Supreme] 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.  The same assumption -- that the problem could be solved when particular methods of voting discrimination are identified and eliminated -- was indulged and proved wrong repeatedly prior to the VRA's enactment...In truth, the evolution of voting discrimination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclearance remains vital to protect minority voting rights and prevent backsliding...After exhaustive evidence-gathering and deliberate process, Congress reauthorized the VRA, including [Section 4], with overwhelming bipartisan support...In my judgment, the [Supreme] Court errs egregiously by overriding Congress' decision.

This is where it becomes a projection really.  If we go back to the record in 2006 when Congress last voted to extend Section 5 of the VRA, it passed 390-33 in the House and 98-0 in the Senate and was signed into law by then-President George W. Bush.  So Justice Ginsburg was correct when she noted that it received overwhelming bipartisan support. There's just one problem: since 2006 the House has changed dramatically with the introduction of the Tea Party in 2010. This is a group that defies their own Republican Party on many issues if the Republicans refuse to shift to the far right.  For this particular House to go back and agree to amend Section 4 of the VRA -- an Act that many of them disagree with on a fundamental level -- will be an uphill battle to say the least.  Congress will now have to go back and redefine what it means to be a "covered jurisdiction" (aka a "trouble maker").  Many of the Southern states already effected by the VRA will, of course, attempt to introduce a watered-down formula which removes themselves from the list. Democrats, on the other hand, will attempt to introduce a formula which applies to not only those Southern states but also other states, counties and cities which proved during the 2012 election that they will try their best to block minority and young voters who tend to vote Democratic.  

The only positive to this process is that the Supreme Court did not choose to rule that the entire VRA is unconstitutional. Nor did they rule that Section 5 preclearance is unconstitutional.  So this will (hopefully) keep Congress focused on the narrow argument of simply coming up with a formula for who should and who shouldn't be on the list of covered jurisdictions.  In the meanwhile, the DOJ is still legally authorized to continue to use Section 2 of the VRA to block any state voting laws which discriminate against minorities from this day going forward.  This fact may provide the necessary leverage needed to get the recalcitrant Tea Party House members to come to the table in order to amend Section 4 in a meaningful way. However, based on this Congress' track record, I wouldn't hold my breath. 

What's your take on this decision and the reasoning used to reach it?

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