Category: Living consequences Tags: Shelby v. Holder, U.S. Supreme Court, Voting Rights Act of 1965
In 2006, the U.S. Congress voted 98-0 to reauthorize the Voting Rights Act of 1965 for another quarter-century.
This re-authorization included Section 5, which requires certain states (or parts of states) to seek federal approval, in advance, for any changes to their voting procedures (known as “preclearance”). It also included Section 4, which provides the “coverage formula” defining which states (or parts of states) are subject to preclearance, based upon their historic use of voting procedures to discriminate against black voters.
This morning, the U.S. Supreme Court ruled, 5-4, that the coverage formula is no longer
unconstitutional constitutional. The majority opinion found that the formula was justified in 1966, by the “‘blight of racial discrimination in voting’ that had ‘infected the electoral process in parts of our country for nearly a century.'” Today, however, a majority of the justices agreed that “Nearly 50 years later, things have changed dramatically.”
In particular, the Court found that blatant voting discrimination is “rare,” and that voter registration and turnout “now approach parity,” while “minority candidates hold office at unprecedented levels.” Therefore, while the coverage formula was “rational in both practice and theory” in 1966, the Court believes that there is no longer a sharp distinction between jurisdictions with a recent history of voting-rights problems and those without, and thus it is no longer rational for Congress to re-apply the coverage formula without modification.
In practice, this decision means that the preclearance provision of Section 5 of the Voting Rights Act, the central feature of this landmark civil rights legislation, is now inoperative. Congress does have the option of re-writing Section 4 and hoping that the Court finds their new coverage formula constitutional, but in practice, this is a very significant hurdle for supporters of voting rights to overcome.
The Court did not address Section 2 of the Voting Rights Act, which forbids racial discrimination in voting across the country, and did not address the constitutionality of Section 5, requiring preclearance, itself. The Court only struck down Section 4’s formula for determining which jurisdictions are subject to Section 5, but this means that, unless Congress acts, no jurisdictions can be held to the standards of Section 5.
Justice Ginsburg wrote the dissent for herself and three of her colleagues, writing that the Court has found that “the very success of §5 of the Voting Rights Act demands its dormancy,” and arguing strongly that Congress, not the Supreme Court, should decide whether or not current conditions require the continuation of Section 5’s preclearance provision, to “facilitate completion of the impressive gains thus far made” and to “guard against backsliding.”