Project Wonderful

Tuesday, July 9, 2013

Ask Nancy: What Happened With the Supreme Court and Voting Rights?

Many people are confused by the recent disappointing ruling in Shelby County v. Holder, a case I wrote about earlier this year.You can read the entire opinion here. I answer some common questions about the ruling, and its potential implications, below.

Did the Supreme Court strike down the Voting Rights Act?
No, but they did strike down the coverage formula delineated in Section 4 which was one of its most important mechanisms of enforcement.

I thought you said this case was about Section 5.
It was. Section 5 required that jurisdictions covered under Section 4 have any changes in voting laws "precleared" by the Department of Justice or a three-judge panel in DC. Hence without Section 4, no Section 5.

What was the coverage formula based on?
When the Voting Rights Act was enacted in 1965 any jurisdiction that maintained a "test or device" as a barrier to enfranchisement, for example a literary test, as of November 1, 1964 was included. It also included states where less than half of the voting-age population was registered to vote as of November 1, 1964 or where less than half of the voting-age population had voted in the previous Presidential election. In 1970, Congress renewed the act and added that any jurisdictions that fit the aforementioned criteria as of 1968 would be also be included. In 1975, when Congress renewed the act again they expanded the formula to include jurisdictions that fit the criteria as of 1972, they also expanded the definition of "test or device" to include a failure to provide election materials in a second language in areas where linguistic minorities were concentrated.

So once you were covered you were covered forever? What if you violated voting rights after 1972?
Jurisdictions that felt they no longer fit the critera could seek a declaratory judgement to "bail-out" and no longer be covered under Section 4. Any jurisdiction that violated any other part of the Voting Rights Act could be "bailed-in."

Why did the Supreme Court rule Section 4 unconstitutional?
It comes down to everyone's favorite loophole for discrimination: state's rights. The constitution gives all powers not specifically assigned to the Federal Government to the states, including the administration and regulation of elections. In addition, we operate under a principle of "equal sovereignty among the states." In the majority opinion, Chief Justice Roberts ruled that Section 4 violated these principles by treating some states differently than others.

But wasn't that true in 1965 when the Voting Rights Act was enacted?
Yes. However, in a 1966 case challenging this portion of the act the Court ruled that the “uncommon exercise of
congressional power” was justified by the “exceptional conditions” of widespread discrimination, voter suppression and intimidation. The Court argued that conditions have changed dramatically since 1965 while the VRA has not.

Is the court claiming that voter suppression and discrimination no longer exists?
No. It is claiming that discrimination has declined dramatically and that it looks very different than in did in 1965. The Court pointed out that when the VRA was enacted the formula was partially based on Jim Crow era measures like poll taxes and literary tests, while the most recent electoral schemes dismissed under Section 5 involve things like redistricting and voter ID.

Isn't it possible that discrimination has declined in covered areas because of Section 5?
Possible, nay probable. Quoth my personal hero, Justice Ginsburg in the dissent, "[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet." This is evidenced by the fact that since the ruling previously covered jurisdictions have been running to implement redistricting schemes and voter id laws that they know to be discriminatory. Texas Governor and famous big jerk Rick Perry just approved the new Texas electoral maps that had been ruled discriminatory by a three-judge panel.

Surely some areas had evolved and no longer needed to be covered under Section 5.
Of course. That's what the bail-out mechanism was for. However, it was the districts trying to implement discriminatory measures that objected to Section 5. As famous civil rights attorney, Fred Gray pointed out if these jurisdictions had "developed to the point where they [were] interested in protecting the individual rights of minorities and the proposals [were] indeed not discriminatory, they would have nothing to worry about when submitting an issue for preclearance."

Without Sections 4 and 5, how are voters protected from discriminatory changes to election law?
The Court went out of its way to emphasize that Section 2, "which bans any'standard, practice, or procedure' that 'results in a denial or abridgment of the right of any citizen . . . to vote on account of race or color,' applies nationwide, is permanent, and is not at issue in this case." Voting rights advocates are already gearing up to sue discriminatory jurisdictions under Section 2.

Section 2 seems like it's got us covered. What's the problem?
What Section 5 did was shift the burden of proof from the oppressed to the oppressor. Section 2 requires that oppressed groups be aware of changes to election law and have the organization and resources to fight them. Don't forget, Section 4 covered municipalities too. Sure it might make it on the news if there were a new statewide law, but what about a local change in early voting hours? By the time a suit is brought and decided against a discriminatory change it may have already had a deleterious effect. It's a lot easier to stop a law from being implemented than fight it once it's already in place.

So, is preclearance gone forever?
Not necessarily. The Court's main objection to Section 4 is that the formula is based on the discriminatory practices of yesteryear and that only combatting these practices justified what would normally be considered Congressional overreach. The Court deliberately left it open for Congress to come up with a new way to use preclearance to fight modern day discrimination. "To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions." Unsurprisingly, some Democrats have already begun formulating a plan to do just that and Republicans are formulating a plan to stop them.


  1. " loophole for discrimination: state's rights.", seriously? Isn't that also a "loophole" for empowerment? If it had to be decided at a federal level there would be no same-sex marriage rights anywhere. Its not really intellectually honest of you to compare the basic mechanics of our government to sleazy back-alley gun shows.

  2. Anyone who studies civil rights knows that a lot of bigotry has historically been passed off under the argument of "states rights." Segregation comes to mind. When it to comes to gay marriage many politicians have punted the question by saying, "I believe that should be decided by the states" which is a fancy way of saying "I'm too much of a chicken to tell you what I really believe on the basic issue of equality."

    I agree with you that states' rights are extremely important and integral to our very foundation. That is why I find it so abhorrent that opponents of Section 5 would claim they object on the basis of state sovereignty when it is really an excuse for them to disenfranchise people who don't vote the way they'd like.

    I'm sorry if that was unclear to you.