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SCOTUS guts the Voting Rights Act — in a way that keeps its hands clean

Today SCOTUS handed down a decision in the case of Shelby County v. Holder, and essentially punted to Congress the matter of re-addressing the Voting Rights Act of 1965. It struck down Section 4, with Chief Justice John Roberts writing the majority opinion (PDF) in the 5-to-4 decision; siding with Roberts were Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence (Uncle) Thomas. Dissenting were Justices Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

So what does this mean? Elspeth Reeve, at the AtlanticWire:

Shelby County, Alabama challenged Section 5 of the VRA, which requires that states and counties with a history of trying to block minorities from voting get pre-clearance from the Justice Department to change any voting laws — from the requirements to register to vote to the location of a polling station. Section 4 is the formula that determines what places Section 5 applies to. The majority opinion says, “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2. We issue no holding on [Section] 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.”

…What is the Section 4 formula? The formula was originally based on these criteria: 1) Did the jurisdiction use a law like a literacy test to keep people from registering to vote? 2) Did less than 50 percent of the eligible population register to vote in 1964, or did less than 50 percent of those people vote in a presidential election? If the answer to these questions was yes, then states and other jurisdictions were subject to preclearance. In 1975, The New York Times‘ Adam Liptak explains, Congress added “language minority groups” to cover jurisdictions that only issued ballots in English even though they had many non-English speakers.

While the majority opinion issued on Tuesday says Congress is free to write a new formula to reflect current conditions, it seems unlikely Congress will act.

So Congress can enact a new statute to determine who should be covered.  I won’t hold my breath for that one. The jurisdictions involved are here. The fact is that we’ve seen efforts to suppress and curtail the rights of racial minorities to vote, not only in the South, but states not covered by the VRA. If anything, there needs to be more scrutiny — look at efforts to institute Voter ID laws, limit early vote programs and weekend voting, try to set up proof of citizenship requirements, purging voter rolls, etc. This ruling is only asking for more shenanigans to take place first, and ask questions later.

Adam Serwer at MSNBC:

Roberts’ contention relies on the notion that the criteria for determining which states are covered by Section 5 is outdated because it supposedly hasn’t been changed since the 1960s. As Justice Ruth Bader Ginsburg points out however, it’s less that the formula hasn’t changed than that the covered states still find creative, even superficially race-neutral ways to disenfranchise voters based on race. Ginsburg points out that a key study considered by Congress when they were reauthorizing the Voting Rights Act in 2006 showed that since 1982, successful voting rights lawsuits were far more likely in the states covered by Section 5.

“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes,” Ginsburg writes, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Roberts writes that “history did not end in 1965. By the time the Act was reauthorized in 2006, there had been 40 more years of it.” But it’s Roberts, not Congress, and not supporters of the Voting Rights Act, who fails to appreciate everything that’s happened since. Jurisdictions can “bail out” of Section 5 by avoiding attempts to disenfranchise minorities, but for the conservative majority, that is apparently too high a bar to clear. For places like Shelby County with recent violations of the Voting Rights Act, it’s recent history that’s the problem.

With Section 4 invalidated, Section 5 is inoperable rather than dead. By kicking the decision of whether Section 5 the Voting Rights Act lives or dies to Congress, Roberts avoids the blame for its demise. Congress overwhelmingly reauthorized the Voting Rights Act in 2006, but Roberts knows that today’s Republican Party is far more hostile to any cooperation with Democrats, and that a legislative fix for Section 4 is unlikely. Rather than killing a landmark civil rights law by borrowing the racial resentment of Scalia or the historical inversions of Thomas, Roberts chooses a route that appears more narrow but may be no less final, one that better insulates the high court from criticism.

If you want to learn more about the potential impact of this ruling, is holding a national call, “What Does the SCOTUS Decision Mean for Communities of Color?” on Wednesday at 9AM ET (Dial in: 800-894-5910, Conference ID: VOTING RIGHTS). One of the participants will be Rev. Dr.  William J. Barber of the North Carolina NAACP,  who is heading up the Moral Mondays here protesting the regressive policies of the GOP-run legislature here (including Voter ID) that are being foisted on the state. From the ColorofChange press release:

For decades the Voting Rights Act has protected voters in states with a history of racially discriminatory voting practices. Just this past election, the VRA allowed the Justice Department to block attempts by Texas, South Carolina and Florida to implement discriminatory voting rules aimed at making it harder for people to vote. While the Court’s decision will make it harder to fight back against attacks on the right to vote, advocates still have other tools to help ensure free, fair and accessible elections. Today’s ruling also underscores the need for an explicit constitutional amendment guaranteeing the freedom to vote for everyone, regardless of where they live.

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Pam Spaulding

Pam Spaulding