SCOTUS: ‘Can’t Rely on Past’ for Voting Rights Act
The Supreme Court today struck down the most controversial part of the Voting Rights Act of 1965.
The Supreme Court today struck down the most controversial part of the Voting Rights Act of 1965.
NYT (“Supreme Court Strikes Down Key Part of Voting Rights Act“):
The Supreme Court on Tuesday effectively struck down the heart of the Voting Rights Act of 1965 by a 5-to-4 vote, ruling that Congress had not provided adequate justification for subjecting nine states, mostly in the South, to federal oversight.
“In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics,” Chief Justice John G. Roberts Jr. wrote for the majority. “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.”
The court divided along ideological lines, and the two sides drew sharply different lessons from the history of the civil rights movement and gave very different accounts of whether racial minorities continue to face discrimination in voting.
President Obama, whose election as the nation’s first black president was cited by critics of the law as evidence that it was no longer needed, said he was “deeply disappointed” by the ruling. “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,” he said.
[…]
Chief Justice Roberts said that Congress remained free to try to impose federal oversight on states where voting rights were at risk, but must do so based on contemporary data. When the law was last renewed, in 2006, Congress relied on data from decades before to decide which states and localities were covered. The chances that the current Congress could reach agreement on where federal oversight is required are small, most analysts say.
Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined the majority opinion. Justice Ruth Bader Ginsburg dissented, joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
The majority held that the coverage formula in Section 4 of the Voting Rights Act, originally passed in 1965 and most recently updated by Congress in 1975, was unconstitutional. The section determines which states must receive preclearance from the Justice Department or a federal court in Washington before they make minor changes to voting procedures, like relocating a polling place, or major ones, like redrawing electoral districts.
The current coverage scheme, Chief Justice Roberts wrote, is “based on 40-year-old facts having no relationship to the present day.”
“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,” he wrote. “It cannot simply rely on the past.”
The decision did not strike down Section 5, which sets out the preclearance requirement. But without Section 4, which determines which states are covered, Section 5 is without significance — unless Congress chooses to pass a new bill for determining which states would be covered.
Lyle Denniston of SCOTUSblog comments:
If the full potential impact of the ruling does occur, what would mainly be left to authorize challenges to racial discrimination in voting would be other parts of the law not under review Tuesday, but those parts require a potentially time-consuming process of one lawsuit at a time, persuading a court to give a remedy that applies to one state or local government per case.
He notes, though, that today’s ruling “had been telegraphed four years ago when the Court skeptically examined the 1965 law’s validity.” He adds,
Chief Justice John G. Roberts, Jr., who wrote the Court’s main opinion in 2009 suggesting strongly that the 1965 law was vulnerable because it was no longer keyed to current discrimination experience, again was the author of the main opinion Tuesday.
[…]
The Chief Justice recalled in the main opinion that the Court had voiced constitutional worries about the 1965 law four years ago, and then commented: “Congress could have updated the coverage formula at that time, but did not do so.” That “failure to act,” Roberts went on, “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 [under Section 5].”
Essentially, then, Roberts and a majority had forewarned Congress, which ignored said warning.
SCOTUSblog contributor Richard Phildes puts the debate into perspective:
To those who will be distraught, outraged, or fearful, the essential question at stake in the Court’s decision – and in the continuing vitality of Section 4 — is whether we believe racial discrimination in voting still exists in the South. The question being framed this way, the Court’s decision today will appear to be, at best, a denial of reality and a reflection of a naïve “post-racial” view that in the Obama era, racial discrimination in voting has ended. Justice Sotomayor, at oral argument, perfectly reflected this perspective on what the decision represents when she posed this pointed question to the VRA’s challengers: “Do you think that racial discrimination in voting has ended, that there is none anywhere?” The answer to that question must be no. From this vantage point, then, as long as racial discrimination in voting still does take place at all in the South, Section 4 of the VRA – the part the Court invalidated – remains not just justifiable, but essential.
[…]
Yet to others, including the Court’s pivotal actor, Justice Kennedy, the essential question at stake is whether our political system is frozen in place on issues concerning race. Do our political institutions and culture have the capacity to recognize that dramatic changes at the intersection of race and voting have taken place over recent decades? Section 4 was created in 1965 as a short-term measure for five years; in initially upholding that system, the Court called it “an uncommon exercise of congressional power” justified by the “exceptional circumstances” of the massive disfranchisement of black voters (and many poor whites) that existed when the VRA was enacted. In 1970, Congress extended this system for another five years; in 1975, for another eight; and in 1982, for twenty-five more years. Then, in 2006, in the provision the Court struck down, Congress re-authorized this system for another twenty-five years, until 2031. Thus we moved from a five-year regime in 1965 for exceptional circumstances to a sixty-six-year regime that continues to single out nine states (and fifty-three other counties) for unique federal control.
But of even more symbolic significance, from this perspective: these areas all became covered because of their voting practices in 1964 or, at the latest, 1975 – nearly forty years ago. And these are the same areas, and nearly the only areas, that have remained covered ever since. Though the Act formally creates a mechanism to permit these areas to prove their current entitlement to be relieved of coverage, this part has never been a meaningful way for the Act to unwind itself from within: fewer than one percent of all the counties originally covered that have significant minority populations have ever emerged from the Act. From this vantage point, the question the case was “about,” then, is this: how can Congress act as if nothing significant enough has changed in the last forty years to justify any meaningful change at all in Section 4? Even if areas of discriminatory voting practices remain, surely they cannot mirror so exactly the areas of which this was true forty or fifty years ago.
There can be no doubt either that racial discrimination still exists in American politics—if perhaps for very different reasons than it did in 1965—and that it remains an issue in the American South. But nor can there be any doubt that the South, including the nine states in question—Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia—has changed radically over these past 48 years. Virginia, where I was born and have lived the last eleven years, has elected a black governor and twice voted for a black president since 1965.
So, Justice Roberts gets it right in noting the ”fundamental principle of equal sovereignty” among the States which subjects “disparate treatment of States” by Congress to a very heavy burden of proof. As he notes, “The Court nonetheless upheld the Act, concluding that such an ‘uncommon exercise of congressional power’ could be justified by ‘exceptional conditions.'” The extant history in 1965 constituted an exceptional condition. It’s much harder to argue that it exists in 2013. And Roberts is also right that “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.”
I’d argue three points, tangential to the Constitutionality of the VRA but germane to the larger issue of racial equality in voting.
First, the nature of today’s discrimination is fundamentally different, in that it’s targeting race as secondary characteristic to achieve a Constitutional if dubious political goal: affecting the partisan outcome of elections. The Supreme Court has given state legislatures wide berth in gerrymandering for partisan political and other non-invidious purposes.
Second, most of the real racial discrimination in voting is outside the scope of the pre-clearance requirement. That is, localities attempt to depress turnout by the underprivileged classes, which overlaps heavily with minority status, through random registration requirements, scrubbing of voting rolls, constantly changing voting locales, shortening voting hours, under-staffing polling stations, and other means that are probably legal and in any case not subject to pre-clearance scrutiny.
Third, the nine states in question have no monopoly on these practices.
So, on balance, the ruling strikes me as correct Constitutionally. But Congress needs to get back in the game and come up with an updated Voting Rights Act that addresses the real problems of today.
UPDATE: Doug Mataconis and I apparently started writing posts on this simultaneously and he beat me in getting it out. There’s enough difference in our takes to keep both live.
I can only hope the South gets at least one high-death toll tornado for each attempt at disenfranchisement it will try to finagle through now.
Indeed. Elections have consequences. From 1968 to 2012 Republicans won 7 of 12 presidential elections. Obama’s appointments have maintained, not augmented, the liberal wing.
@al-Ameda:
This is why you vote D at every single opportunity, without even looking at candidate names or their agendas. If it had a D before its name, I’d vote for an Ebola strain.
Wait, you’re telling us to put our faith in Congress?
Oh, and I don’t think a “failure to act” justifies the Supreme Court’s power grab to gut the VRA.
Art. I, Sec. 4, Cls. 1:
Who goes after the Supreme Court when the Supreme Court acts unconstitutionally?
Second, most of the real racial discrimination in voting is outside the scope of the pre-clearance requirement. That is, localities attempt to depress turnout by the underprivileged classes, which overlaps heavily with minority status, through random registration requirements, scrubbing of voting rolls, constantly changing voting locales, shortening voting hours, under-staffing polling stations, and other means that are probably legal and in any case not subject to pre-clearance scrutiny.
You do not know what you are talking about, full stop. If you are in a jurisdiction subject to pre-clearance, you cannot alter any of those things. The items that you are concerned about were specifically covered by the VRA. Until today.
>Who goes after the Supreme Court when the Supreme Court acts unconstitutionally?
Who do you think? (An oldie but goodie.)
Hmmm, using Obama’s election as proof that we are not in 1965 is belied by the point that all the states listed but VA voted against Obama, which to me is proof that 1965 is not some ancient time, but rather alive and well in the south as they further retrench from mainstream America.
Put it another way, those 8 states comprised a third of the states not carried by Obama.
I think its ironnic that these wingnut lunatics on the Court are so interested in a “modern” update since they regularly go with origininal intent and rail against the living Constitution philosophy.
@Lit3Bolt:
All Congress has to do is pass a new section 5 using current conditions that applies to all of the 50 states who can be shown to impeded voting rights. Not retain the old language set up to deal with egregious violations of the rights of blacks and poor whites by Democrats over 40 years ago.
@JKB:
“Democrats over 40 years ago.”
You mean the democrats who immediately turned republican when a democratic president took Apartheid away from them? You mean the ex-democrats/republicans who still use Apartheid tactics today?
If you Confederates could get away with it, you would happily beat black people away from voting booths with sticks. Again.
@Lit3Bolt: I’m not saying we should put our faith in Congress—although it’s Congress that passed the VRA. I’m saying the Court has told Congress it has to actually do its job.
@NickTamere: States are changing these rules all the time.
This is no more than 5 justices substituting their judgment for Congressional judgment.
Another lousy 5-4
@Commonist: meanwhile in minn.
“Upon hearing that the Supreme Court struck down part of the Voting Rights Act, the Democrat (ryan winkler) took to Twitter to attack Justice Clarence Thomas as an Uncle Tom. ”#SCOTUS VRA majority is four accomplices to race discrimination and one Uncle Thomas. Marriage decision may blur Court’s backsliding,” he tweeted. He quickly deleted the tweet, but twitter is forever.”
move on, blacks vote as much or more than whites these days .
@James Joyner:
Indeed. A number of northern states have recently decided to follow the Confederacy’s good example and also tried to pass voter suppression laws. That’s not an argument to give up on pre-clearance- its an argument to extend it to other states.
Except that this Congress has no interest at all in “doing its job”, anymore than Orville Faubus was interested in doing his job of carrying the Supreme Court’s order to desegregate Arkansas’ schools in 1954. You know that, I know that, and certainly the conservative majority on the SCOTUS know it too. If they don’t, they’re idiots, and I don’t think they are idiots.
This is nonsensicsl legal analysis.
There is not “heavy burden” on Congress here.
The 15th Amendment expressly give it the power to act as it has.
This is extremely poor legal analysis.
@James Joyner:
You have seen Congress, right? The same congress that couldn’t pass a farm bill because it wasn’t draconian enough towards poor people? Yeah, they’re going to race to the floor to pass an amendment to the VRA enshrining the rights of the poor and minorities to have access to the vote.
Isn’t Thomas married to a white woman? I wonder how that POS would have voted in the Loving v. Virginia case?
I think we all know that hypocrite would vote with the “libtards” on that one.
Is Uncle Tom really too strong a label for this ahole?
@Commonist: Which explains why people with a Napoleon complex like Bloomberg and Rahm Emanuel are mayors. Go drink you 15 ounce soda and your unsalted fries and leave the governing to the adults.
@Lit3Bolt: Good question, lets talk about Obama Care and the SCOTUS decision.
@rudderpedals: But when a 5-4 decision goes your way it fair, right?
Things have changed in the south Justice Roberts! What planet are you from? Did you not see the voter suppression being applied across the country last November? The lines where a really old lady waited for hours and hours just to vote. This decision is a disgrace to those who marched, were beaten and even killed to get equal voting rights for all. SCOTUS allowed Citizens United which favoured the Republicans! Now they’ve done this because yet again it favours Republicans. What an absolute disgrace this SCOTUS is. Totally partisan that much is very clear!
@the Q: Uncle Tom? I can see where the racism still exists today–it’s spewing forth from the left like Old Faithful. God forbid a black man get off the Democrat plantation and vote his conscious!
@Caj: Citizens United didn’t favor the left and Unions…Oh No! Unions vote D upwards of 80% of the time, I doubt you will find that same slant when it comes to businesses.
@Lit3Bolt: This is why these judges should be elected.
Let the people choose.
@Jack:
Of course
@Caj: Because crimes against minorities don’t happen in liberal states…no.
http://www.copblock.org/34163/driving-while-black/
Of course the Republican Party will hatch various racist efforts to block black votes. James’ party is increasingly comfortable with its identification as the party of bigots. So they’ll have no hesitation to try and rig votes. They’ve been at it for a long time.
So we will have to expose them. And the process will allow us to make the point over and over again that the GOP is a racist party, a whites only party, a party that cares nothing for free elections but only cares about power.
And of course then we ask ever more pointedly why decent people like James Joyner are still members of this clan.
@the Q:
Nope. He is exactly like Stephen, the slave in the movie Django Unchained who loved his master and ruled over the other slaves. That might seem a little strong, but I think its accurate.
@stonetools: Sounds to me like you are describing the esteemed Reverend Jackson and Sharpton!
If Congress tried to come up with a new test for states, how many blue states like Wisconsin or Maryland would be caught by the formula. What is amazing is how many white liberals think that they can come up with a test that will be restrict only to the south because they know so little demographic data, voting habits by race or ethnicity, or even such as terms as majority/minority.
I suspect that the District of Columbia would be the first place to get into trouble due to it being a one party state and having closed primaries.
@Jack:
Blacks vote 90% Democratic – is that because Blacks have no idea how great the modern Republican Party is?
@stonetools:
Only if it can be shown that the intent is to discriminate on the basis of race. Since everyone understands that the purpose is partisan politics, that’s a hard bar to cross.
@Facebones: SCOTUS ruled that Congress can’t do *this.* That Congress is unlikely to muster the political will to do something more appropriate doesn’t render the unconstitutional constitutional.
@Armando: The 15th gives Congress power to pass “appropriate” legislation. It is the function of the courts to decide whether the legislation is appropriate, especially insofar as it balances against other Constitutional principles. That’s Con Law 101.
@al-Ameda: No. They vote Democrat because heaven forbid they think for themselves, leave the plantation and vote Republican causing you assholes to call them uncle Tom.
@Jack:
So black people don’t think for themselves. Got it. And you wonder why African-Americans don’t vote for Republicans. Keep it up, genius, we like owning the White House.
@Lit3Bolt: It isn’t the Supreme Court any longer and hasn’t been for many years. It’s the U.S. SUBVERSION COURT.
@superdestroyer: The District of Columbia isn’t a State.
@michael reynolds: Good smartass, that’s exactly what I said.
@michael reynolds: Who’s we? I don’t see your ugly ass in the white house. You got an Obama in your pocket?
The Democrat party disenfranchises voters too. During Bush v Gore 2000 election the democrats sent lawyers to every voting district in Florida with the express purpose to disallow military votes because the military heavily favors Republicans. I don’t think it’s states that we need to watch out for, I think the DNC should be subject to a new and improved Voters Rights Act.
@Jack:
You’ll need a link for that to be remotely believable.
I’m an attorney. I’ve read hundreds of SCOTUS opinions ever since my first Con law class in 1972. This has to rank as one of the most poorly thought-out opinions I have ever read. It is embarrassing.
@James Joyner:
But, as many here like to howl & moan, maybe 90% of black voters vote Democratic, & it’s their votes that are the primary target of suppression.
And why is partisan disenfranchisement OK? If it isn’t against the law it certainly should be.
Jack, not sure why I’m bothering but I feel I have to correct your egregious BS about the Gore campaign trying to disenfranchise military personnel. What really happened: All absentee votes that came in on time were counted. The Repubs claimed that no late votes should be counted except those that originated from military bases. So they were sticklers for the absolute letter of the law (and way beyond) except where they felt it could benefit them.
The fact that you Repub BS’ers are still peddling this crap more than a decade after the fact is all the rest of us need to know to justify ignoring anything you say. (Note: this doesn’t apply to Republicans like James. I think he is too willing to give his side the benefit of the doubt as far as motivation or result goes, but he might say the same of me. In any case, I consider him a straight shooter.)
@William Wilgus:
From the Democrats POV, DC is close enough to a state. However, it currently operates from the POV that blacks should control the local government. As the Latino population grows in states like Maryland or in non-states like DC, Latinos will start to demand that districts are drawn so that they can automatically win seats much like the currently drawn districts for blacks. Those districts will need to be carved out of formerly black controlled districts. Does anyone really believe that the current crop of black politicians who have been accustomed to having districts drawn to their benefit will be willing to share. Somehow I doubt it.
@David M:
Here is a link from CNN. http://archives.cnn.com/2000/LAW/11/24/election.legal.wrap.04.pol/index.html
However, I have no idea why one should have to produce a link for something that everyone should be able to remember.
@MarkedMan:
It is amazing that you are trying to blame Republicans for something that the Democrats were doing. The lawsuits were filed by Democrats. But I guess since Republicans exist, it forced the Democrats to file the lawsuits.
@superdestroyer: Hispanic majority districts already happen ( there are a couple around Chicago, the Rio Grande Valley, several NYC districts etc)
@James Joyner:
“The 15th gives Congress power to pass “appropriate” legislation. It is the function of the courts to decide whether the legislation is appropriate, especially insofar as it balances against other Constitutional principles. That’s Con Law 101.”
Reply outsourced to Kevin Drum
“So here’s your nickel summary. If a law is passed on a party-line vote, has no justification in the historical record, and is highly likely to harm black voting, that’s OK as long as the legislature in question can whomp up some kind of neutral-sounding justification. Judicial restraint is the order of the day. But if a law is passed by unanimous vote, is based on a power given to Congress with no strings attached, and is likely to protect black voting, that’s prohibited unless the Supreme Court can be persuaded that Congress’s approach is one they approve of. Judicial restraint is out the window. Welcome to the 21st century.”
Possibly the most radical, activist, court in 4 decades.
History will laugh at these clowns…jurists my arse. Partisan hacks is what they are…aiding and abetting in the Republican tactic of voter supression.
Bush v. Gore, Citizens United, now this.
They ought to all be impeached.
Well, that’s an easy one – he would have decided it in whatever way afforded him, personally, the most benefit, either directly, such as affecting who he could marry, or indirectly, like how it would benefit the organizations that
bribesupport him and his family.Charles Pierce gets it right.
Kevin Drum at http://www.motherjones.com/kevin-drum/2013/06/compare-and-contrast-laws-protect-white-voting-vs-laws-protect-black-voting#disqus_thread (read the whole article)
“Note the difference. In Crawford, where the target is a law that’s likely to disenfranchise black voters, the bar for constitutionality is almost absurdly low. Regardless of what the real motives of the lawmakers are, or what the likely effect of the law is, it’s valid if the state merely asserts a “neutral justification.” That’s it.
But in Shelby County, where the target is a law designed to protect black voters, the bar for constitutionality is suddenly much higher. Even though the Fifteenth Amendment gives Congress the unconditional right to enact legislation designed to prevent states from abridging the right to vote “on account of race [or] color,” the court ruled that, in fact, Congress is quite fettered after all. It cannot decide to simply renew a law that it thinks is working well. Instead, it’s required by the court to update its formulas to satisfy the court’s notions of what’s logical and what isn’t.”
Why do you call it controversial? It passed Congress less than 10 years ago with the kinds of majorities usually reserved for naming post officers after one of the Founding Fathers.
@Robert Levine: It’s the only part of VRA that has been seriously questioned in my political memory, going back more than 30 years. Given the history, though, it’s quite difficult politically to vote against renewing the Voting Rights Act on the basis that you think prescreening is unfair and/or unconstitutional.