The Supreme Court may not have been ready to hand down its controversial decision on same-sex marriage today, but that doesn’t mean they avoided provoking a huge debate. In a 5-4 decision authored by Chief Justice John Roberts, the court struck down Section 4 of the Voting Rights Act as unconstitutional. So far, we have only a few tweets on this decision:
Sec 4 of the Voting Rights Act is unconstitutional. 5-4. Per CJ Roberts.
— SCOTUSblog (@SCOTUSblog) June 25, 2013
U.S. Supreme Court strikes down key part of Voting Rights Act law aimed at protecting minority voters #breaking
— Reuters Top News (@Reuters) June 25, 2013
Here’s the decision. The relevant argument is that the VRA departs from the basic principle of state sovereignty before applying law, at least under the old model in Section 4 for pre-clearance. In order for the VRA to interfere with state sovereignty, Congress has to identify where racial discrimination in voting access is so endemic as to require that kind of intervention now, and not 50 years ago:
(3) Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act, “[v]oter turnout and registration rates” in covered jurisdictions “now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Northwest Austin, supra, at 202. The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased §5’s restrictions or narrowed the scope of §4’s coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger. Because §5 applies only to those jurisdictions singled out by §4, the Court turns to consider that provision. Pp. 13–17.
The defense of those 50-year-old definitions did not impress the court:
(2) The Government attempts to defend the formula on grounds that it is “reverse-engineered”—Congress identified the jurisdictions to be covered and then came up with criteria to describe them. Katzenbach did not sanction such an approach, reasoning instead that the coverage formula was rational because the “formula . . . was relevant to the problem.” 383 U. S., at 329, 330. The Government has a fallback argument—because the formula was relevant in 1965, its continued use is permissible so long as any discrimination remains in the States identified in 1965. But this does not look to “current political conditions,” Northwest Austin, supra, at 203, instead relying on a comparison between the States in 1965. But history did not end in 1965. In assessing the “current need[ ]” for a preclearance system treating States differently from one another today, history since 1965 cannot be ignored. The Fifteenth Amendment is not designed to punish for the past; its purpose is to ensure a better future. To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. Pp. 18–21.
In other words, the government couldn’t even make an argument that the endemic discrimination that required federal interference in state-level legislative processes still existed. They just argued that because the conditions existed 50 years ago, they might still be a problem today — an argument that lends itself to unlimited exercise. Small wonder the court found this irrational.
Note too that Section 4 impacts Section 5. The latter governs redistricting, which is another state-level legislative process that the Department of Justice can block in certain states using Section 4’s preclearance authority. Without Section 4, Section 5 loses its teeth as a process with no jurisdiction any longer.
The court left Congress an opening to provide a more rational formula for Section 4, but noted repeatedly that times have changed, and extraordinary intervention will be difficult to justify:
Striking down an Act of Congress “is the gravest and most delicate duty that this Court is called on to perform.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (Holmes, J., concurring). We do not do so lightly. That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no
choice but to declare §4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.
Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2. We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. 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.” Presley, 502 U. S., at 500–501. 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.
National Journal profiled this case last week:
At issue before the Supreme Court in the Alabama case is a key provision of the 1965 Voting Rights Act that requires jurisdictions (mostly in the South but not entirely) to get federal approval (either from the Justice Department or a panel of the D.C. Circuit Court) before it can change any voting procedure. That can be something as big as redistricting a state’s Congressional lines or a town moving a polling place to a different location. The idea behind the law was to keep elected officials in the Jim Crow South from implementing ruses to keep blacks from voting.
This preclearance procedure is contained in what’s called Section 5 of the act and it faced court challenges immediately when it was enacted. In 1965, the Warren Court upheld emergency provision and said that it had to be regularly renewed. The first period was for five years but Congress has extended the renewals. The 2006 renewal of the Section 5 was for 25 years and passed the House by almost 400 votes and the Senate by 98-0–a testament to the law’s enduring popularity and effectiveness.
But the formula for determining who gets covered–a combination of voting practices and patterns– hasn’t changed since the 1960s. It applies to nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia — plus counties and municipalities in other states. Indeed, some states and cities have fallen under Section 5’s sway even though they weren’t legally segregated, including such as certain parts of New York City and towns in New Hampshire.
There’s reason to think the court is unlikely to allow those discrepancies to stand until 2031 when the act comes up for renewal. In 2009, the Supreme Court used the case of an obscure water utility district in Texas to express doubt about the viability of Section 5 preclearance procedure with Chief Justice John Roberts all but inviting Congress to limit its scope. “Things have changed in the South,” Roberts wrote. “Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels….The evil that (Section 5) is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance,” Roberts wrote in the majority 8-1opinion which suggests even a liberal justice might jump the fence. “The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.”
Will Congress address the court decision with a renovated Section 4? Doubtful, even without Chuck Todd’s conclusion that it’s not “mature enough” to deal with voting rights at all. The problem left by this decision will be to find someplace in America where state law creates endemic racial and ethnic discrimination at a level that requires federal intervention in the state legislative process. Where might that be? The opinion includes this chart showing the difference between white and black voting registration in 1965 and 2004:
The only state where the difference is outside the margin of polling error is, surprisingly, Virginia, where the gap was lowest in 1965. (Look at the improvement in Mississippi, for instance, and ask why it’s still on the Section 4 list.) Rather than interfere with states’ legislative process before the fact (which is what the preclearance provision allows), the DoJ can address Virginia’s current statutes with the rest of the VRA now — without Sections 4 or 5. Congress could designate Virginia only in a revised Section 4, too, but that’s going to be a very tough sell.