In a 5-4 decision, the United States Supreme Court issued a ruling on Tuesday that strikes down key parts of the Voting Rights Act of 1965. Section 4 of the Act was struck down, which had established a formula to identify states that may require extra scrutiny by the federal government and Justice Department when it comes to voting law changes.
While the decision in the case Shelby County, Alabama V. Attorney General Eric Holder removes barriers for certain states, the ruling "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," wrote Chief Justice John Roberts in the majority opinion, which was joined by Justices Alito, Kennedy, Scalia and Thomas.
However, many see the ruling as effectively allowing states and counties that have a history of racial discrimination to avoid clearing changes in voting procedures with the federal government. The current restriction was in place for nine states and parts of six others. But the Court says that the federal government has no authority to specifically oversee voting districts with a history of voter discrimination without continued Congressional authorization.
"That portion of the Act was designed to prevent discrimination in voting by requiring all state and local governments with a history of voting discrimination to get approval from the federal government before making any changes to their voting laws or procedures, no matter how small," wrote Amy Howe on SCOTUSBlog.com. "Much more importantly, it held that Section 4 of the Voting Rights Act, which sets out the formula that is used to determine which state and local governments must comply with Section 5’s pre-approval requirement, is unconstitutional and can no longer be used. Thus, although Section 5 survives, it will have no actual effect unless and until Congress can enact a new statute to determine who should be covered by it."
"The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem," wrote Chief Justice Roberts. "Section 5 of the Act required states to obtain federal permission before enacting any law related to voting—a drastic departure from basic principles of federalism. And [Section] 4 of the Act applied that requirement only to some States—an equally dramatic departure from the principle that all States enjoy equal sovereignty."
"I am deeply disappointed with the Supreme Court’s decision today," President Obama said in a statement. "For nearly 50 years, the Voting Rights Act – enacted and repeatedly renewed by wide bipartisan majorities in Congress – has helped secure the right to vote for millions of Americans. 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."
Obama adds: "As a nation, we’ve made a great deal of progress towards guaranteeing every American the right to vote. But, as the Supreme Court recognized, voting discrimination still exists. And while today’s decision is a setback, it doesn’t represent the end of our efforts to end voting discrimination. I am calling on Congress to pass legislation to ensure every American has equal access to the polls. My Administration will continue to do everything in its power to ensure a fair and equal voting process," Obama says.
Justice Ruth Bader Ginsburg wrote the dissenting opinion in which Justices Breyer, Sotomayor and Kagan concurred.
"The sad irony of today's decision lies in its utter failure to grasp why the (Voting Rights Act) has proven effective," wrote Justice Ginsburg. "The Court appears to believe that the VRA's success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. With that belief, and the argument derived from it, history repeats itself."
To help walk us through this decision and what it means we welcome three guests: Heather Gerken, professor of law at Yale Law School, where she specializes in election law; John Neiman, Solicitor General of Alabama, who wrote an amicus brief in support of Shelby County, Alabama; and Julian Bond, former chair of the NAACP who is now a professor at American University. In the 1960s, Bond helped create and lead the Student Nonviolent Coordinating Committee (SNCC).
"Anyone who knows about the Voting Rights Act knows that if you strike down Section 4, you've basically put a stake in the heart of Section 5," Gerken tells The Takeaway. The professor says that Section 4 determines who is covered and who isn't—without that coverage formula, she adds, Section 5 is meaningless. "The provisions of the Constitution that matter here—the 14th and 15th Amendments—specifically gave Congress the power. That's really the irony of this opinion because there was no question that the framers of the 14th and 15th Amendments intended for Congress, not the courts, but Congress to decide how to enforce the amendments. What the Court did today was second guess Congress' judgement on that."
Others like Bond feel that the Supreme Court has backed away from the already established mechanisms used to fight voter suppression.
"This is a bad, bad day for civil rights," says Bond. "There's a proven record of discrimination in many states in this country. We can see during the last election these attempts at voter suppression nationwide in states both North and South. To imagine that this problem has been solved—or even more, to imagine that Congress, which is so dysfunctional, could deal with correcting this, is a myth."
"All the Court said in this case was that the current formula that Congress used to determine which states were covered and which states weren't wasn't current—it was based on awful things that happened in 1960s that justified the measure then," says Nieman. "The way that the law is written, unless there's a coverage formula in place, Section 5 simply does not operate."
From the dissent: The sad irony of today's decision lies in its utter failure to grasp why the VRA has proven effective.— SCOTUSblog (@SCOTUSblog) June 25, 2013
American citizens withstood beatings, firehoses and dogs to see the law passed. Some even gave their lives. #VRA is a vital tool. Agree?— Donna Brazile (@donnabrazile) June 25, 2013
This is the court, with a slim majority, making a purely factual determination different from Congress. That's it.— Christopher Hayes (@chrislhayes) June 25, 2013
Arguing that VRA created voting parity is a not a justification for its extension. You don't take chemo after cancer goes into remission.— Ben Shapiro (@benshapiro) June 25, 2013
For those upset about VRA decision, at least understand why SCOTUS says the formula must be changed: pic.twitter.com/53uX7aR83d
— Erick Erickson (@EWErickson) June 25, 2013
Ginsburg: "One would expect more from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation."— Irin Carmon (@irincarmon) June 25, 2013
SCOTUS took a step backward on voting rights, on civil rights, & on justice for all. The decision is a cue for Congress to strengthen #VRA.— Nancy Pelosi (@NancyPelosi) June 25, 2013