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the court to strike down Section 5 but they did not do so; they did, however, rule that the formula in Section 4(b) was outdated.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.