This morning, the United States Supreme Court struck down Section 4 of 1965's Voting Rights Act in Shelby County v. Holder.
Leading up to this decision, Section 5 was getting all the attention. Section 5 of the Voting Rights Act governs how so-called “covered jurisdictions” throughout the United States can alter their election laws. These jurisdictions historically discriminated against racial minorities so much that they were effectively “blacklisted," and they had to follow Section 5's “preclearance” rules requiring approval by the federal government before implementing any changes in their voting practices or procedures.
(During the 2012 election cycle, this process of “preclearance” was used to weed out several “voter identification” laws throughout the South. But for the “preclearance” requirements, many of these otherwise discriminatory laws would have been enacted.)
But it’s Section 4—where the preclearance formula is located—that determined which jurisdictions must obtain preclearance from the federal government. And in fact, it’s Section 4 that SCOTUS declared unconstitutional today. The Court concluded that Congress was relying on an outdated formula to determine which jurisdictions had to be monitored, because the same jurisdictions that were covered in 1965 were still covered today (with the exception of those few that had already qualified for removal from the list). No new jurisdictions have been added in more than 30 years.
The Court has struck down or neutralized two key provisions of arguably the most significant piece of legislation in American history. The Court observed that some jurisdictions that are not covered may be more discriminatory than those that remain on the list. For the Court, this proved that the current formula was woefully inadequate.
The Court is right that Congress could have done a better job updating Section 4's coverage formula. But the existence of even more discrimanatory jurisdictions is no reason to eliminate preclearance--if anything, it's all the more reason to preserve it.
And there are still jurisdictions out there that should go through preclearance and are on the current list because they've show a history to this day of discrimination. But now they're no longer covered. By striking down Section 4, the Court removed the trigger that activates Section 5, thereby throwing out the baby with the bathwater.
Moreover, the Court is overstating its case. It's true that some jurisdictions probably no longer deserve to be on that list--but the Voting Rights Act already provides a way for them to "bail out" of the preclearance requirements by showing they haven't been discriminatory for about 10 years.
Pointing to Barack Obama’s election as “proof” that the Voting Rights Act is anachronistic--as some critics of the Voting Rights Act have said--misses the point: President Obama was elected in a nationwide vote, while Section 5 focuses on particular jurisdictions that have consistently obstructed the language and spirit of the Fifteenth Amendment.
In doing so, the Court has struck down or neutralized two key provisions of arguably the most significant piece of legislation in American history. The Voting Rights Act of 1965—the crown jewel of the Civil Rights Movement—was the first serious attempt to enforce the Fifteenth Amendment, which prohibited state governments from denying the right to vote on the basis of “race, color, or previous condition of servitude.” It took Congress 95 years to enforce that amendment (it was ratified in 1870).
By giving life to the words of the 15th Amendment, the Voting Rights Act forever changed the trajectory of American politics, both locally and nationally, ultimately culminating in the election of an African-American president of the United States. But pointing to Barack Obama’s election as “proof” that the Voting Rights Act is anachronistic—as some critics of the Voting Rights Act have said—misses the point of Section 5 altogether: President Obama was elected in a nationwide vote, while Section 5 focuses on particular jurisdictions that have consistently obstructed the language and spirit of the Fifteenth Amendment.
In the 48 years since the Voting Right Act was enacted, the country has made great strides towards equality for all. But after today’s ruling, jurisdictions that have historically discriminated against racial minorities will find it easier to do so. Although the Court is right to point out that we are no longer living the 1960s, problems still remain: Over the past 5 years, we've seen several efforts by Republicans to mitigate demographic changes in the South (particularly Texas) to neutralize the growing voting power of minorities. And just hours after the ruling, Texas' Secretary of State announced that he will now be implementing that state's voter ID law, now that Section 5 no long stands in his way.
The ruling serves as another reminder that states should probably consider their own voting rights acts (e.g., the Washington Voting Rights Act). So long as discrimination in voting exists, we will need the types of protections that the Voting Rights Act provided. The Court's decision only increases the urgency for individual states like Washington to enact measures of their own.
PubliCola LawNerd David A. Perez is an attorney in Seattle. He received his B.A. from Gonzaga and his J.D. from Yale Law School. He advocated in Olympia this year in support of Washington State's own Voting Rights Act.