The U.S. Supreme Court dealt a major blow to the Voting Rights Act of 1965 today, striking down the criteria for determining which states and municipalities must seek federal permission before making changes to their voting system. We break down the decision and detail reaction to the major decision.
The U.S. Supreme Court dealt a major blow to the Voting Rights Act of 1965 today, striking down the criteria for determining which states and municipalities must seek federal permission before making changes to their voting system. The 5-4 decision (PDF) nullifies the equation used to decide which areas need federal oversight, or "preclearance", when it comes to voting laws due to their history of racial discrimination, also known as section 4 of the law.
"In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics,” wrote Chief Justice John G. Roberts Jr. for the majority. “Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”
Justices Samuel A. Alito Jr., Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas joined Roberts in voting to strike down section 4. Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor dissented.
The SCOTUS decision leaves the door open for Congress to call for federal oversight on states where voting rights could be in jeopardy, known as section 5 of the law, but requires the divided chamber to come up to an agreement on a new formula in which to decide which areas need federal supervision. Congress has previously reauthorized section 5 several times since 1965, with the latest being in 2006, when it was extended for another 25 years. But section 5 cannot be enforced if Congress does not come up with a new formula for determining which places in the nation need "preclearance" to make changes to their voting system.
President Barack Obama said he was "deeply disappointed" in the decision in a statement released after the news broke:
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.
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.
The decision comes in response to a case brought by Shelby County, Alabama against U.S. Attorney General Eric Holder. The suit argues that the county should no longer be required to seek "preclearance" for changes to their voting provisions. The case made it to the high court after a three-panel U.S. Court of Appeals for the District of Columbia denied the county's challenge of the law by a 2-1 vote. In writing for the majority, Judge David S. Tatel stated that while the law raised "substantial constitutional concerns", Congress reauthorized section 5 based on “reasonable conclusions from the extensive evidence it gathered” during comprehensive hearings it had to discuss ongoing racial discrimination at polling places prior to the 2006 vote to extend the "preclearance" mechanism.
The dissenting judge in the case, Steven J. Williams, wrote that the method for determining what states and municipalities require "preclearance" does not fit today's society, arguing that recent information on things like the numbers surrounding minority voter registration and turnout and the number of black politicians that have been elected into office “suggests that the coverage formula completely lacks any rational connection to current levels of voter discrimination.”
But in her dissent, U.S. Supreme Court Justice Ruth Bader Ginsburg disagreed with that sentiment:
Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court's opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story. See supra, at 18–19. Without even identifying a standard of review, the Court dismissively brushes off arguments based on "data from the record," and declines to enter the "debat[e about] what [the] record shows"…One would expect more from an opinion striking at the heart of the Nation's signal piece of civil-rights legislation.
Ginsburg also detailed eight recent instances of racial discrimination at the voting booth, adding that "hubris is a fit word for today's demolition of the VRA." An incident with Alabama state lawmakers was included in her list of recent examples of racial discrimination at polling places:
A recent FBI investigation provides a further window into the persistence of racial discrimination in state poli tics. See United States v. McGregor, 824 F. Supp. 2d 1339, 1344–1348 (MD Ala. 2011). Recording devices worn by state legislators cooperating with the FBI’s investigation captured conversations between members of the state legislature and their political allies. The recorded conversations are shocking. Members of the state Senate derisively refer to African-Americans as “Aborigines” and talk openly of their aim to quash a particular gambling-related referendum because the referendum, if placed on the ballot, might increase African-American voter turnout. Id., at 1345–1346 (internal quotation marks omitted). See also id., at 1345 (legislators and their allies expressed concern that if the referendum were placed on the ballot,“‘[e]very black, every illiterate’ would be ‘bused [to the polls] on HUD financed buses’”). These conversations occurred not in the 1870’s, or even in the 1960’s, they took place in 2010. Id., at 1344–1345. The District Judge presiding over the criminal trial at which the recorded conversations were introduced commented that the “recordings represent compelling evidence that political exclusion through racism remains a real and enduring problem” in Alabama. Id., at 1347. Racist sentiments, the judge observed, “remain regrettably entrenched in the high echelons of state government.” Ibid. These recent episodes forcefully demonstrate that §5’s preclearance requirement is constitutional as applied to Alabama and its political subdivisions.8 And under our case law, that conclusion should suffice to resolve this case. See United States v. Raines, 362 U. S. 17, 24–25 (1960)
"Just as buildings in California have a greater need to be earthquake proofed, places where there is greater racial polarization in voting have a greater need for prophylactic measures to prevent purposeful race discrimination," Ginsburg wrote. “Throwing 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,” she added.
The Nation Reacts To The Major Blow To Voting Rights
Reaction to the decision has been swift among federal officials, lawmakers and the general public alike.
Holder was quick to voice his disappointment with the decision, and warned that he will not allow the ruling to impede on Americans' right to vote.
“Let me be very clear: We will not hesitate to take swift enforcement action using every legal tool that remains available to us against any jurisdiction that seeks to take advantage of the Supreme Court's ruling by hindering eligible citizens full and free exercise of the franchise,” the attorney general said.
U.S. Rep. John Lewis (D-GA,5), who was in attendance when the Voting Rights Act was signed into law back in 1965 and still has one of the pens President Lyndon B. Johnson used in doing so, was crestfallen upon hearing the decision.
“What the Supreme Court did was to put a dagger in the heart of the Voting Rights Act of 1965,” Lewis said after the decision. “This act helped liberate not just a people but a nation.”
Here's more from Lewis, one of only a handful of living civil rights movement leaders, who watched the Supreme Court give its decision on the case with an ABC News camera crew:
#VRA and #SCOTUS have been high on today's Twitter trend list since the decision was announced. According to Topsy Pro., which measures Twitter activity, more than 85,000 tweets mentioning "voting rights" or #VRA were mentioned on Twitter since the decision was announced this morning, as of 3:00 p.m. CST. During the same timeframe, more than 126,000 tweets have come across Twitter with either #SCOTUS or the phrase "supreme court". The ACLU was one of those that took to Twitter to vent about the SCOTUS decision on the Voting Rights Act case. Here is one of three tweets they sent out earlier today:
The Congressional Black Caucus, Congressional Asian Pacific American Caucus and the Congressional Hispanic Caucus held a joint press conference this afternoon in response to the decision, during which U.S. Rep. Marcia Fudge (D-OH,11), chair of the Congressional Black Caucus, said today is "a day that will go down in the history of this country as one of the worst days for civil rights and civil discourse in this country's history."
U.S. representative Terri Sewell (D) of Alabama spoke at the presser and stressed that there is still a need for enforcement of sections 4 and 5 of the Voting Rights Act in her state, and others.
This is indeed a sad day for our nation, but its an especially sad day for my home state of Alabama. As a native of Selma, Alabama and as the member that currently represents the civil rights district of Alabama, I can tell you that I know that the injustices suffered on that bridge on Bloody Sunday in 1965 has not been fully vindicated. I think its ironic that the very state that caused us to get the Voting Rights Act is now being used by our Supreme Court to dismantle that very law. But I think that as long as there are facts like the facts in the Shelby County case, which so clearly demonstrates that there's so much work to be done, the fact of the matter is that without preclearance the city of Calera, the county of Shelby, redrew the lines such that an African American city council member would lose. And the discriminatory effect was that he lost, he lost that election. This wasn't in 1965. This wasn't in 1970 or 1980. ... This was but a few years ago. I think it's unacceptable. And as long as there are voters whose rights need to be protected, there is a need for the Voting Rights Act.
Now, we in Congress have an opportunity, an opportunity to develop another coverage formula. But I can tell you that whatever coverage formula that is developed, I can't imagine that my state, Alabama, would not continue to fall under it. It's disheartening for me because I know that so much progress has taken place, but the unfortunate reality is there is still so much more to be done. I look forward to working with my colleagues on both sides of the aisle to get that work done so that the effects of section 5 will continue to be available. I would have never thought that I, a beneficiary of the Civil Rights Movement, would be on a stage today with John Lewis, Steny Hoyer, Jim Clyburn and so many of my colleagues fighting still for the fundamental right to vote. The right to vote is scared. And we who are in Congress, Republican and Democrat, should be fighting for that right, not looking to restrict it. And the very fact that in this past election we had 38 states, including Alabama, that had voter ID laws looking to restrict people's right to vote, we have to stand up. We have to stand up. And I look forward to joining my colleagues in standing up for the Voting Rights Act of 1965 and for the protections of minority rights.
Second SCOTUS Ruling To Negatively Impact Americans' Voting Power
During the presser Minority Whip Steny Hoyer (D-Maryland) said the move by the Supreme Court "will have a real impact on voters", with Fudge reporting that attempts to install some 2,400 discriminatory voting provisions were thwarted by sections 4 and 5 of the Voting Rights Act since 1982. Additionally, U.S. Reps. John Conyers (D-MI,13) and Steve Cohen (D-TN,9) noted that the high court's latest decision is their second crack at stripping Americans of their power during elections.
"This, in conjunction with Citizens United, is the second effort by the Supreme Court, whether intentional or not, to destroy democracy as we've known it in this country," said Cohen. "When you put all this money into politics it diminishes people's votes and dollars now count [in an] unlimited [way]. The wealthy have more votes because dollars is power." (See the full press conference here.)
While the president, lawmakers and millions of Americans call on Congress to act swiftly on the issue, there are signs that may not happen. While head of the Senate Judiciary Committee Patrick Leahy (D-VT) said he plans to "take immediate action" on the issue, head of the House Judiciary Committee Bob Goodlatte's plans to address section 4 did not sound nearly as urgent, with him seeming to insinuate that simply relying on section 2 of the law going forward should suffice.
“I intend to take immediate action to ensure that we will have a strong and reconstituted Voting Rights Act that protects against racial discrimination in voting,” Leahy said in regards to holding hearings on a new formula for section 4.
Meanwhile, Goodlatte said, “The Supreme Court has now decided that original coverage formula does not meet constitutional requirements. This decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in Section 2 of the Voting Rights Act, which remains in place."
Additionally, some congressmen are applauding the decision. U.S. Rep. Jim McClendon (R-AL,50), who represents Shelby County, said today is a "glorious day" in reaction to the news during an interview with Tamron Hall on MSNBC. Claiming the system is "outdated", McClendon believes the Supreme Court made the right decision. If many of his colleagues feel similarly, lawmakers who seek to create a new formula for section 4 could be facing an uphill battle. McClendon's full interview can be seen here.
Analysts say the likelihood that Congress does anything to address section 4, and consequentially enforce section 5, of the Voting Rights Act is slim at best.
“The Supreme Court effectively kicked this back across the street to Congress, but in practice. In reality it’s probably the death knell of this provision,” said publisher of SCOTUSblog Tom Goldstein, who also works as a Supreme Court analyst for NBC News.
It is unclear as to how, when, and even if Congress will truly take action to come up with a new formula for section 4 of the Voting Rights Act, which would allow for section 5, or "preclearance", to be executed. If the disjointed, acrimonious Congress fails to come up with a new equation, thousands of Americans stand to lose easy, fair access to the ballot box — something a generation of Americans fought to attain, with some even losing their very lives for the cause.
AP Photo/Evan Vucci