The Voting Rights Act is Dead. Long Live the Voting Rights Act!

Well, so much for strategic compromise.  The Supreme Court ruled this morning, along ideological lines in a 5-4 decision, to invalidate a key provision of the Voting Rights Act.

The funny (or sad) thing is, Chief Justice Roberts likely thought he was taking a narrower approach, because the majority opinion he authored invalidates Section 4, the coverage formula, as opposed to Section 5, the preclearance provision.  The majority ruled that Section 5, which requires preclearance, is constitutional in theory, but that the coverage formula used in Section 4 is unconstitutional.  This approach, on its face, is seemingly narrower than striking down all of Section 5.  Indeed, Justice Thomas concurred specifically to argue that the Court also should have gone further and invalidated Section 5. 

But Chief Justice Roberts surely knows that Congress is extremely unlikely to Act in updating the coverage formula.  Make no mistake:  killing Section 4 has the effect of killing Section 5 as well. 

The Chief had other options.  Justice Ginsburg, in her dissent, mentioned the facial versus as-applied distinction that I identified yesterday, noting that facial challenges are disfavored.  (Come on, Justice Ginsburg – no citation to me?  Where’s the love?)  Chief Justice Roberts barely responded in his opinion. 

So although the Chief Justice might have thought he was being crafty in narrowing the opinion to focus on the coverage formula, the reality is that his opinion takes away a significant and major component of voting rights protection.  Section 5 of the Voting Rights Act had a great life, helping to equalize voting access in the places that most resisted integration.  As Justice Ginsburg noted, “Just as buildings in California have a greater need to be earthquake­proofed, places where there is greater racial polarization in voting have a greater need for prophylactic measures to prevent purposeful race discrimination.”  The ball is now in Congress's court to revive this important provision.  Will it find a way to pass an updated coverage formula so that the Voting Rights Act can live on? Protecting the right to vote for all Americans demands that it does.