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Tuesday, June 25, 2013

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. 

Posted by Josh Douglas on June 25, 2013 at 03:39 PM | Permalink


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There has been non-stop henny-penny, sky-is-falling, end-of-the-world reaction today. At least this post didn't equate the decision with Dred Scott -- which a prominent media commenter did.

The majority did the American democracy a big favor today. The voting rights law had become a fossil relic that both parties were genuflecting to, even as the law more and more grossly distorted voting. Democratic politicians prefer more black politicians even at the expense of diluting the overall power of the black franchise. The GOP love the VRA for the same reason: it ensured minority-candidate-safe districts that left surrounding districts GOP-safe. The DOJ loved to spend hours, months, and years analyzing a state's decision to move a polling station half a block. To see how badly the ossified statute had distorted things, read the quite sensible op-ed by Lane in the Washington Post. I suppose they could have taken the easy way out: cite the history of civil rights, throw in some cliches, affirm, and bask in the warm glow of praise. I'm glad they took the tougher route and spoke honestly. Our democracy deserved better than that.

Posted by: anon | Jun 25, 2013 9:35:08 PM

And Texas has already announced that its voter ID law will go into effect. I expect many more similar laws and re-drawing of voting districts to come. Let the disenfranchisement begin...

Posted by: Kendall Isaac | Jun 25, 2013 5:15:16 PM

As you say, Roberts (and the other 4 justices) "surely knew" the real effect of their decision. So there's no need to pretend that they "thought they were taking a narrower approach." It was just about optics.

Posted by: Anderson | Jun 25, 2013 4:17:11 PM

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