The Real Problem With the Voting Rights Act Ruling

This morning, the Supreme Court issued its ruling in Shelby County v Holder, which challenged two sections of the Voting Rights Act, first passed in 1966 but reauthorized several times, most recently in 2006 by a nearly unanimous vote of Congress. There’s some good news and some bad news in that ruling, which can be viewed here.

Section 5 of the VRA is a requirement that some states and counties get preclearance from the Department of Justice before making any changes to their voting laws that could have a disproportionately negative effect on minority voters. Section 4(b) provides the formula for determining which states and counties must apply for preclearance from the DOJ. Many had expected the court to strike down Section 5 but they did not do so; they did, however, rule that the formula in Section 4(b) was outdated. As Chief Justice Roberts notes in his majority opinion:

The coverage formula and preclearance requirement were initiallyset to expire after five years, but the Act has been reauthorized several times. In 2006, the Act was reauthorized for an additional 25 years, but the coverage formula was not changed. Coverage still turned on whether a jurisdiction had a voting test in the 1960s or 1970s, and had low voter registration or turnout at that time.

Thus, the court ruled:

Section 4 of the Voting Rights Act is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to preclearance…

There is also a “fundamental principle of equal sovereignty” among the States, which is highly pertinent in assessing disparate treatment of States.

The Voting Rights Act sharply departs from these basic principles. It requires States to beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own. And despite the tradition of equal sovereignty, the Act applies to only nine States (and additional counties)…

In 1966, these departures were justified by the “blight of racial discrimination in voting” that had “infected the electoral process in parts of our country for nearly a century.” At the time, the coverage formula—the means of linking the exercise of the unprecedented authority with the problem that warranted it—made sense. The Act was limited to areas where Congress found “evidence of actual voting discrimination,” and the covered jurisdictions shared two characteristics: “the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average.” The Court explained that “[t]ests and devices are relevant to voting discrimination because of their long history as a tool for perpetratingthe evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters.” The Court therefore concluded that “the coverage formula [was] rational in both practice and theory.”

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.” 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 theyhave grown even stronger.

Look, this is not an entirely illegitimate argument. Things really have changed, but not necessarily in the way the court believe they have. I think the preclearance formulas are outdated as well, I agree with the majority, but for a very different reason. I think the preclearance requirement should be applied to every state and county in the country. If there’s one thing that the history of the last 30+ years, and especially the last 3 years since the Republican takeover of so many state legislatures, should have shown us is that the problem of racially biased voting restrictions is not confined to the south anymore.

We’ve seen a huge range of policies in northern states, from photo ID laws to voter caging practices, that are designed to make it far more difficult for poor and minority voters to cast a ballot. In Michigan, the Republican party planned to use foreclosure lists in 2008 to challenge voters at the poll until we (the Michigan Messenger and our excellent reporter Eartha Jane Melzer, exposed that plan and the courts stopped it. That would have affected mostly poor and minority voters, both because foreclosure affected such people most often and because the only precincts they would have done that in were those filled with poor and minority voters, who are more likely to vote Democratic. Starting in 1981 and many times since, the GOP has been found guilty of illegal voter caging by federal courts, so this is hardly an isolated example.

So we should not pretend that these problems are limited to the Jim Crow south, they are national problems. But here’s the down side of that — there’s no way in hell Congress is going to do the right thing and apply the preclearance requirement nationally. The reauthorization of the Voting Rights Act may have passed Congress with near unanimity in 2006, but this is a very different Congress. You think there’s any chance in hell of the Republican-controlled House passing anything remotely like it at this point? I’ll be elected emperor of Japan before that happens.

So in essence, the Supreme Court knocked down an inadequate policy only to ensure that it is replaced by no policy at all, which is even worse.

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  • Trebuchet

    Now if we could do something about racially based gerrymandering!

  • But the corporations are not affected by this ruling, right? Whew.

  • What if they change it from states and counties getting preclearance to Republicans getting it?

  • cptdoom

    So in essence, the Supreme Court knocked down an inadequate policy only to ensure that it is replaced by no policy at all, which is even worse.

    I completely agree with you on the issues with this case – and nationwide coverage is the only real remedy, because it’s equal – but it’s not the Supreme Court’s fault that our Congress is so worthless that they won’t act to improve the act. One could be totally cynical and say the Court ruled this way because the Congress is currently nonfunctional and therefore could ensure the problem won’t get fixed, but that seems a bit far-fetched. If the Court really wanted to gut the law, they could simply have held section 5 unconstitutional and be done with it; that they saw the wisdom in the law nearly 50 years ago is a bit of a bright spot in the ruling.

    The court also held the marriage rulings until tomorrow, so I have a bit of hope they want to go out on a positive note, and we’ll see, at least, rulings that overturn DOMA and return marriage equality to CA.

  • I don’t think the court has the authority to change the VRA as Ed would have it. I’m pretty sure striking it down is all they can do. The best thing for us to do now is all lobby our representatives & senators.

  • baal

    “I think the preclearance requirement should be applied to every state and county in the country. ”


    Somehow I doubt the majority in the case would allow that either.

  • timpayne

    Characterizing this as a good news/bad news story is as ridiculous as minimizing the impact of Citizens United – “a tempest in a teapot” if I remember Ed’s words correctly. The Texas AG has already announced that their voter ID law and their racially driven redistricting, both of which had been blocked with the Voting Rights Act, are now in full force. That took about five hours, and that sound you hear is Republican legislatures across the nation revving up their voter suppression plans. I’m having a hard time seeing the good part of this.

  • Scalia — “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes”

    Because voting is a racial entitlement.

  • Chiroptera

    I am sure that a Supreme Court that has ruled that the Constitution does not give an innocent person the right to not be executed also doesn’t give a citizen the right to vote.

  • So the argument is that VRA is working, so let’s get rid of it?

  • timpayne

    An hour and a half after my earlier post, and Republicans in North Carolina and Mississippi have now announced they are moving forward immediately with voter ID plans. But the good news is…..just where was it, Ed? The curious thing is our five stooges on the court, and Ed, were convinced the methodology for determining potentially bad actors was flawed. By the response to this ruling, I’d say it was right on the money.

  • Chiroptera

    The real problem with the Voting Rights Act is that it helps “just anyone” vote, if you know what I mean, and I think you do.

  • trucreep

    I was unaware of the effort to tie foreclosures to voting eligibility…I only knew of the whole confirming you’re a US citizen bullshit..I’ll have to look into this, thanks!

  • Gvlgeologist, FCD

    The VRA was overwhelmingly passed by the US Congress and signed into law by the president. Correct me if I”m wrong, but isn’t this exactly what conservatives mean when they complain about activist courts thwarting the will of the people?

  • Azkyroth Drinked the Grammar Too :)

    The five Injustices on the court saw the opportunity to stick another knife in the country’s back and took it. What’s not to understand?

  • bahrfeldt

    Are the Vegas odds posted yet on what other individual rights and protections will next be deemed anachronisms by the court’s radical majority?

  • wpjoe

    “You think there’s any chance in hell of the Republican-controlled House passing anything remotely like it at this point?”

    What if the dems in the senate did it? If they could get it passed, then the house leadership would have to explain why they wouldn’t take it up.

  • drr1

    Ed wrote:

    [T]here’s no way in hell Congress is going to do the right thing and apply the preclearance requirement nationally.

    And even if Congress did manage this – which it won’t – the response from Roberts et al would be that the remedy isn’t congruent and proportional (see, e.g., City of Boerne v. Flores; University of Alabama v. Garrett) and so Congress exceeded its Sec. 2 enforcement power.

    No, I’m afraid that one way or another, the VRA simply has to go. It is the only way that the Republican party can remain relevant for the next decade or so. After all, if you can’t win elections, you’ve got to be able to fix them. With the VRA out of the way, the fixing will now begin, “with all deliberate speed.” (with apologies to the late Chief Justice Warren).

  • eric

    No doubt some GOP strategists will see the ruling as drawing a (helpful, to them) line in the sand too. “Hey look, the courts said we can suppress minority voting by 11 points, just so long as we don’t hit 12 points.”

  • velociraptor

    Of what ‘equal sovereingty’ does Roberts (R – Shitstain) speak? Supremacy Clause, anyone?

    And hey, ‘Justice’ fuckwad, the section is STILL warranted in those states, and others, largely due to the efforts of your party at voter suppression.