Conservative Court Calls Congress Cowards: Voting Rights Act of 1965, Section 4 (b) and Its formula for Requiring Preclearance Struck Down as Unconstitutional –Videos
The Band – Night They Drove Old Dixie Down
Judge Napolitano ~ Supreme Court Strikes Down Key Provision Of Voting Rights Law
Voting Rights Act Takes Hit by Supreme Court – 6/25/2013
The Supreme Court on Tuesday struck down a section of the Voting Rights Act, weakening a tool the federal government has used for nearly five decades to block discriminatory voting laws.
In a five-to-four ruling, the court ruled that Section 4 of the Voting Rights Act is unconstitutional. That section of the landmark 1965 law provides the formula for determining which states must have any changes to their voting laws pre-approved by the Justice Department’s civil rights division or the D.C. federal court. Nine states are required to get pre-clearance, as are certain jurisdictions in seven other states.
Chief Justice John Roberts wrote for the majority that Section 4 is unconstitutional because the standards by which states are judged are “based on decades-old data and eradicated practices.”
“Nearly 50 years later, things have changed dramatically,” Roberts wrote. “The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased [Section 5's] restrictions or narrowed the scope of [Section 4's] coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger.”
The court could have made a much broader ruling by striking down Section 5, which dictates that those states must get pre-clearance. However, the court decided that the Justice Department still has a role in overseeing voting laws.
Nevertheless, civil rights advocates called the ruling a huge blow to democracy.
“The Supreme Court has failed minority voters today,” Sherrilyn Ifill of the NAACP Legal Defense and Education Fund said Tuesday outside of the court.
The ruling underscores the Supreme Court’s lawmaking powers, challenging Congress’ overwhelmingly bipartisan decision in 2006 to renew the Voting Rights Act for another 25 years. Ifill pointed out that the court renewed the law after holding 52 hearings over nine months and amassing 15,000 pages of evidence of discrimination — including more than 600 objections to voting based on intentional discrimination in the jurisdictions covered by Section 4.
It’s now up to Congress to change the coverage rules so that Section 5 — the section requiring pre-clearance of voting laws in certain states — can continue to be enforced.
“The ball has been thrown not only in Congress’ court, but in our court,” Ifill said, calling on the public to mobilize behind an update to the law.
CLASH Sean Hannity, Juan Williams, Erik Rush over Congress fixing Voting Rights Act
Howard Fineman: Voting Rights ‘Preclearance Is Dead Unless Congress Acts Soon’
The Huffington Post Editorial Director Howard Fineman delivered a grim prognosis relating to the sustainability of the Voting Rights Act of 1965 after the Supreme Court struck from the law provisions relating to the regions of the United States which must submit reapportionment proposals to the Justice Department for preclearance. “Preclearance is dead,” Fineman said, “unless Congress acts soon.”
NBC News reporter Luke Russert began by asking Fineman how today’s ruling on the VRA impacts Democratic plans to expand into traditionally Republican states in the Deep South and Southwest.
“I think a lot is going to depend on how we come to look at discrimination and voting now,” Fineman began. “I think the way to approach this is for the Democrats to say, ‘Look, let’s move forward here.'”
RELATED: If GOP Approaches New Voting Rights Act Like They Did Immigration Reform, The Party Is Doomed
“This is an opportunity to renew for the next century the spirit of the Civil Rights Acts of the ’60s,” Fineman continued. “At the very least, what they’re going to have to do, is raise a whole lot of money for a whole lot of lawsuits all over the country.”
“I think preclearance is dead unless Congress acts soon,” he concluded. “And that’s going to mean you’re going to have to have vigilant people filing lawsuits all over the country, seeking injunctions after the fact trying to make sure the voting procedures are just.”
BREAKING NEWS Supreme Court Throws Out Voting Rights Provision
The divided U.S. Supreme Court threw out a core part of the 1965 Voting Rights Act, rolling back a landmark law that opened the polls to millions of southern blacks. The justices, voting 5-4, struck down the law’s formula for determining which states must get federal approval before changing their election rules. The ruling all but invalidates the section preclearance requirement, leaving it without force unless Congress can enact a new method for determining which jurisdictions are covered.
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Voting Rights Act of 1965
The Voting Rights Act of 1965 (42 U.S.C. §§ 1973–1973aa-6) is a landmark piece of national legislation in the United States that outlawed discriminatory voting practices that had been responsible for the widespread disenfranchisement of African Americans in the U.S.
Echoing the language of the 15th Amendment, the Act prohibits states from imposing any “voting qualification or prerequisite to voting, or standard, practice, or procedure … to deny or abridge the right of any citizen of the United States to vote on account of race or color.” Specifically, Congress intended the Act to outlaw the practice of requiring otherwise qualified voters to pass literacy tests in order to register to vote, a principal means by which Southern states had prevented African Americans from exercising the franchise. The Act was signed into law by President Lyndon B. Johnson, who had earlier signed the landmark Civil Rights Act of 1964 into law.
The Act established extensive federal oversight of elections administration, providing that states with a history of discriminatory voting practices (so-called “covered jurisdictions”) could not implement any change affecting voting without first obtaining the approval of the Department of Justice, a process known as preclearance. These enforcement provisions applied to states and political subdivisions (mostly in the South) that had used a “device” to limit voting and in which less than 50 percent of the population was registered to vote in 1964. The Act has been renewed and amended by Congress four times, the most recent being a 25-year extension signed into law by President George W. Bush in 2006.
The Act is widely considered a landmark in civil-rights legislation, though some of its provisions have sparked political controversy. During the debate over the 2006 extension, some Republican members of Congress objected to renewing the preclearance requirement (the Act’s primary enforcement provision), arguing that it represents an overreach of federal power and places unwarranted bureaucratic demands on Southern states that have long since abandoned the discriminatory practices the Act was meant to eradicate. Conservative legislators also opposed requiring states with large Spanish-speaking populations to provide bilingual ballots. Congress nonetheless voted to extend the Act for twenty-five years with its original enforcement provisions left intact.
In the 2013 case Shelby County v. Holder, the United States Supreme Court struck down Section 4(b) of the Act and its formula for requiring preclearance as unconstitutional based on current conditions, saying it was rational and needed at the time it was enacted but is no longer necessary. Preclearance itself was not struck down, but it currently has no effect unless or until Congress passes a new formula.
The 13th Amendment, ratified in 1865 after the Civil War, abolished and prohibited slavery and secured a minimal degree of citizenship to former slaves. The 14th Amendment, ratified in 1868, granted citizenship to all people “born or naturalized in the United States,” and included the due process and equal protection clauses. This amendment did not explicitly prohibit vote discrimination on racial grounds.
The 15th Amendment, ratified on February 3, 1870, provided that, “The right of U.S. citizens to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”. Additionally under the Amendment, the Congress was given the authority to enforce those rights and regulate the voting process. Soon after the end of Reconstruction, starting in the 1870s, Southern Democratic legislators found other means to deny the vote to blacks, through violence, intimidation, and Jim Crow laws. From 1890 to 1908, 10 Southern states wrote new constitutions with provisions that included literacy tests, poll taxes, and grandfather clauses that permitted otherwise disqualified voters whose grandfathers voted (thus allowing some white illiterates to vote), some with the aim and effect of re-imposing racially motivated restrictions on the voting process that disenfranchised blacks. State provisions applied to all voters and were upheld by the Supreme Court in early litigation, from 1875 (United States v. Cruikshank) through 1904. During the early 20th century, the Supreme Court began to find such provisions unconstitutional in litigation of cases brought by African Americans and poor whites. States reacted rapidly in devising new legislation to continue disfranchisement of most blacks and many poor whites. Although there were numerous court cases brought to the Supreme Court, through the 1960s, Southern states effectively disfranchised most blacks.
In 1909, the National Association for the Advancement of Colored People (NAACP) was created with the mission to promote blacks’ civil rights, including to “secure for them impartial suffrage.” The NAACP’s success was limited: although they did achieve important judicial rulings by the Supreme Court and some legislative successes, Southern legislators quickly devised alternate ways to keep many southern blacks disfranchised through the early 1960s.
Following the 1964 election, a variety of civil rights organizations banded together to push for the passage of legislation that would ensure black voting rights once and for all. The campaign to bring about federal intervention to prevent discrimination in voting culminated in the voting rights protests in Selma, Alabama, and the famous Selma to Montgomery marches. Demonstrations also brought out white violence, and Jimmie Lee Jackson, James Reeb, and Viola Liuzzo were murdered. President Lyndon B. Johnson, in a dramatic joint-session address, called upon Congress to enact a strong voting rights bill. Johnson’s administration drafted a bill intended to enforce the 14th and 15th Amendments, aiming to eliminate various previously legal strategies to prevent blacks and other minorities from voting.
The Act was sent to Congress by President Johnson on March 17, 1965. The bill passed the Senate on May 26, 1965 (after a successful cloture vote on March 23), by a vote of seventy-seven to nineteen. The House was slower to give its approval. After five weeks of debate, it was finally passed on July 9. After differences between the two bills were resolved in conference, the House passed the Conference Report on August 3, the Senate on August 4. On August 6, President Johnson signed the Act into law with Martin Luther King, Jr., Rosa Parks, and other civil rights leaders in attendance.
President Johnson, Martin Luther King, Jr. and Rosa Parks at the signing of the Voting Rights Act on August 6, 1965.
The two numbers in each line of this list refer to the number of representatives voting in favor and against the act, respectively.
- Democrats: 47–17 (73%-27%)
- Republicans: 30–2 (94%-6%)
- Democrats: 221–61 (78%-22%)
- Republicans: 112–24 (82%-18%)
- Democrats: 49–17 (four Southern Democrats voted in favor: Albert Gore, Sr., Ross Bass, George Smathers and Ralph Yarborough).
- Republicans: 30–1 (the lone nay was Strom Thurmond; John Tower who did not vote was paired as a nay vote with Eugene McCarthy who would have voted in favor.)
- Democrats: 217–54
- Republicans: 111–20
Section 2 contains a general prohibition on voting discrimination, enforced through federal district court litigation. Congress amended this section in 1982, prohibiting any voting practice or procedure that has a discriminatory result. The 1982 amendment provided that proof of intentional discrimination is not required. The provision focused instead on whether the electoral processes are equally accessible to minority voters. This section is permanent and does not require renewal.
On March 9, 2009, the U.S. Supreme Court ruled in Bartlett v. Strickland that the Voting Rights Act does not require governments to draw district lines favorable to minority candidates when the district has minorities as less than half of the population.
The central component to Section 4 of the Act is a formula for determining which jurisdictions will be subject to the preclearance conditions of Section 5. As originally enacted, the first portion of the formula was whether, as of November 1, 1964, the jurisdiction used some form of “test or device” to restrict the opportunity to register and vote (such as a literacy test or a character reference). The second portion was a check of whether less than half of all eligible citizens were registered to vote on November 1, 1964, or that half of all eligible citizens voted in the presidential election of November 1964.
Subsequent revisions of the law moved the date where both portions of the formula were gauged ahead to be as of November 1, 1968 and, later, as of November 1, 1972. Revisions in 1982 and 2006 extended the protections of the law but did not change the nature of the formula itself.
Smaller components of Section 4 include protections for voters with limited English skills to ensure they are able to register and vote as well as receive materials on the electoral process in a language which they will understand.
In a decision on the Shelby County v. Holder case released on June 25, 2013, the Supreme Court of the United States ruled Section 4(b) unconstitutional.
Section 5 of the Act requires that the United States Department of Justice, through an administrative procedure, or a three-judge panel of the United States District Court for the District of Columbia, through a declaratory judgment action “preclear” any attempt to change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting…” in any “covered jurisdiction.” The Supreme Court gave a broad interpretation to the words “any voting qualification or prerequisite to voting” in Allen v. State Board of Election, 393 U.S. 544 (1969). A covered jurisdiction that seeks to obtain Section 5 Preclearance, either from the United States Attorney General or the United States District Court for the District of Columbia, must demonstrate that a proposed voting change does not have the purpose and will not have the effect of discriminating based on race or color. In some cases, they must also show that the proposed change does not have the purpose or effect of discriminating against a “language minority group.” Membership in a language minority group includes “persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage.” The burden of proof under current Section 5 jurisprudence is on the covered jurisdiction to establish that the proposed change does not have a retrogressive purpose.
Covered jurisdictions may not implement voting changes without federal preclearance. The Justice Department has 60 days to respond to a request for a voting change. If the Justice Department or federal court rejects a request for Preclearance, the jurisdiction may continue the prior voting practice or may adopt a substitute and seek Preclearance for it. If the jurisdiction implements a voting change before the Justice Department denies Preclearance in contravention of the Act, the jurisdiction must return to the pre-existing practice or enact a different change.
Those states that had less than 50 percent of the voting age population registered to vote in 1960 and/or 1964 were covered in the original act. In addition, some counties and towns that have been found in violation of section 2 have been added. Some cities and counties in Virginia and New Hampshire (see below) have since been found no longer to need Preclearance.
In 2006, the United States Commission on Civil Rights reviewed the Justice Department Preclearance record and found that the percentage of DOJ objections to submitted changes has declined markedly throughout the 40-year period of the Act: from 5.5 percent in the first period to 1.2 percent in the second, and to 0.6 percent in the third. Over the 10 years prior to the review, the overall objection rate was so low as to be practically negligible, at less than 0.1 percent. The Commission’s two Democratic members dissented from the report, charging that the Commission had “abandon[ed] the field of battle.”
In the case Northwest Austin Municipal Utility District No. 1 v. Holder (2009), the Supreme Court ruled that the district should have greater capability of applying for exemption from this section.
On June 25, 2013, the Supreme Court case of Shelby County v. Holder held that the preclearance coverage formula in Section 4(b) was unconstitutional. Without a valid coverage formula, no jurisdiction is currently required to have any of their voting changes precleared under Section 5.
The term “bail out” refers to the process by which covered jurisdictions may seek exemption from Section 5 coverage. In order to bail out, a covered jurisdiction needs to obtain a declaratory judgment from the District Court for the District of Columbia. Eighteen Virginia jurisdictions not covered by Section 5 Preclearance requirements have successfully “bailed out.”
Before August 1984, this process required covered jurisdictions to demonstrate that the voting test that they used immediately before coverage was not used in a discriminatory fashion. The 1982 amendment included two significant changes. First, Congress provided that where a state is covered in its entirety, individual counties in that state may separately bail out. Second, Congress completely redesigned the bailout standard. The post-1984 bailout standard requires that a covered jurisdiction demonstrate nondiscriminatory behavior during the 10 years prior to filing and while the action is pending and that it has taken affirmative steps to improve minority voting opportunities.
On September 22, 2010, the first two jurisdictions outside the state of Virginia—Kings Mountain, North Carolina, and Sandy Springs, Georgia—successfully “bailed out” from Section 5 Preclearance requirements. On November 15, 2012, New Hampshire sued to “bail out” from the requirements, which were originally imposed on ten towns that used a literacy test and had voting disparities when the Act was passed, and prevailed on March 1, 2013.
Similar to the bail out procedure, under Section 3 of the VRA there is a “bail in” or ‘pocket trigger’ process by which uncovered jurisdictions found to be a ‘pocket’ of discrimination may be required to seek preclearance under 42 USC 1973a(c). The statutory language is similar to Section 5 oversight but the period of coverage is based on a ruling or consent decree issued by a federal judge. Not used prior to 1975, Section 3 has bailed in the following: 
- New Mexico
- California: Los Angeles
- Florida: Escambia
- Nebraska: Thurston
- New Mexico: Bernalillo
- South Dakota: Buffalo
- South Dakota: Charles Mix
- Tennessee: Chattanooga
These covered districts are not counted in the Section 5 covered areas below and are not affected by the 2013 Supreme Court decision invalidating the formula in Section 4 for jurisdictions requiring Section 5 preclearance.
Jurisdictions formerly covered
States and counties requiring preclearance under Section 5 of the VRA as of January, 2008. Several small jurisdictions have since bailed out, but the majority of the map remains accurate
The jurisdictions listed below had to have their voting changes precleared before the June 25, 2013, Supreme Court decision Shelby County v. Holder that struck down the formula used to determine who was covered under Section 5 (see 28 C.F.R. part 51 appendix):
- Alabama, except for the city of Pinson
- Georgia, except for the city of Sandy Springs
- South Carolina
- Texas, except for Jefferson County Drainage District Number Seven and Northwest Austin Municipal Utility District Number One
- Virginia, except for 24 counties (Amherst, Augusta, Bedford, Botetourt, Carroll, Craig, Culpeper, Essex, Frederick, Grayson, Greene, James City, King George, Middlesex, Page, Prince William, Pulaski, Rappahanock, Roanoke, Rockingham, Shenandoah, Washington, Warren, and Wythe) and seven independent cities (Fairfax, Falls Church, Harrisonburg, Manassas Park, Salem, Williamsburg, and Winchester)
- California: Kings (except for Alta Irrigation District), Monterey, Yuba (except for Browns Valley Irrigation District and the city of Wheatland)
- Florida: Collier, Hardee, Hendry, Hillsborough, Monroe
- New York: Bronx, Kings (Brooklyn), New York (Manhattan)
- North Carolina: Anson, Beaufort, Bertie, Bladen, Camden, Caswell, Chowan, Cleveland (except for the city of Kings Mountain), Craven, Cumberland, Edgecombe, Franklin, Gaston, Gates, Granville, Greene, Guilford, Halifax, Harnett, Hertford, Hoke, Jackson, Lee, Lenoir, Martin, Nash, Northampton, Onslow, Pasquotank, Perquimans, Person, Pitt, Robeson, Rockingham, Scotland, Union, Vance, Washington, Wayne, Wilson
- South Dakota: Shannon, Todd
- Michigan: Clyde Township (Allegan County), Buena Vista Township
President George W. Bush signs the reauthorization of the Voting Rights Act in July 2006.
Some temporary sections of the Voting Rights Act (none involving the outlawing of literacy tests, which are permanently banned) have been renewed four times and remain in force. These provisions were renewed in 1970, 1975, 1982, and 2006. In the 1982 action, Congress amended the Act to make some sections (including section 2) permanent while renewing the remainder (including section 5) for 25 years (until July 1, 2007).
In July 2006, 41 years after the Voting Rights Act passed, renewal of the temporary provisions enjoyed bi-partisan support. However, a number of Republican lawmakers acted to amend, delay or defeat renewal of the Act for various reasons. One group of lawmakers led by Georgia congressman Lynn Westmoreland came from some preclearance states, and claimed that it was no longer fair to target their states, given the passage of time since 1965 and the changes their states had made to provide fair elections and voting. Another group of 80 legislators supported an amendment offered by Steve King of Iowa, seeking to strip provisions from the Act that required that translators or multilingual ballots be provided for U.S. citizens who do not speak English. The “King letter” said that providing ballots or interpreters in multiple languages is a costly, unfunded mandate.
The bill to renew the Act was passed by the U.S. House of Representatives on July 13 by a vote of 390-33, with support from Republican House leadership, led by Judiciary Committee Chairman F. James Sensenbrenner, Jr. The U.S. Senate passed the bill 98–0 on July 20. President George W. Bush signed the bill in a morning ceremony on the South Lawn of the White House on July 27, 2006, one year in advance of the 2007 expiration date. This extension renewed the Act for another 25 years. The audience included members of the families of slain civil rights leader Dr. Martin Luther King Jr. and Rosa Parks. Also in attendance were the Revs. Al Sharpton and Jesse Jackson, NAACP Chairman Julian Bond and other prominent African Americans.
Some jurisdictions singled out in the Act for their practices in the 1960s are still required by law to receive federal permission for certain changes to election law or changes in venue. These nine Southern states and mostly Southern counties have complained that the practices banned by the Act disappeared long ago and that further compliance with the mandates of the Act are a costly nuisance and an “unfair stigma” to their towns. As an example of the federal bureaucracy involved, Georgia Rep. Jack Kingston said, “If you move a polling place from the Baptist church to the Methodist church, you’ve got to go through the Justice Department.”
Rep. Lynn Westmoreland, R-Ga., said:
Congress is declaring from on high that states with voting problems 40 years ago can simply never be forgiven, that Georgians must eternally wear the scarlet letter because of the actions of their grandparents and great-grandparents. We have repented and we have reformed.— Lynn Westmoreland
Some who think that this federal oversight is discriminatory to these particular states have proposed that the oversight be extended to all 50 states or eliminated entirely.
The 2006 extension of the preclearance procedure was challenged in a lawsuit, Northwest Austin Municipal Utility District No. 1 v. Holder, which was argued before the Supreme Court on April 30, 2009. The lawsuit was brought by a municipal water district in Texas, which elects members to a water board. The district does not register voters, nor has it been accused of discrimination. However, it wished to move the voting location from a private home to a public school; the preclearance procedure required it to seek approval from the Justice Department, because Texas is a covered jurisdiction under Section 5. While the Court did not declare preclearance unconstitutional, the decision redefined the law to allow any political subdivision covered by Section 5 to request exemption from federal review.
During the 2010 election cycle, the state of Florida passed two redistricting amendments to their state constitution that were aimed at preventing future attempts at gerrymandering. Then-governor Charlie Crist, a supporter of both amendments, submitted a request to the DOJ for preclearance, as required by the VRA. In early 2011, Florida’s newly-elected governor Rick Scott, a vocal opponent of these amendments, withdrew the request for preclearance, placing the legal status of the amendments in limbo. In particular, only five of Florida’s counties are required to obtain preclearance under the Act, making it unclear what the status of these amendments is in the remaining counties. Proponents of these amendments, both of which passed with greater than 60% voter approval, are accusing Scott’s administration of attempting to “thwart the will of the voters”, by “abusing their power”, and the VRA’s preclearance clause, as a means to defeat these amendments despite overwhelming voter support.
Some judges and proponents of racially drawn congressional districts have interpreted Section 5 of the Act as requiring racial gerrymandering in order to ensure minority representation. The United States Supreme Court in Miller v. Johnson, 515 U.S. 900 (1995), overturned a 1992 Congressional redistricting plan that had created minority majority districts in Georgia as unconstitutional gerrymander. In Bush v. Vera, the Supreme Court, in a plurality opinion, rejected Texas’s contention that Section 5 required racially-gerrymandered districts.
On November 9, 2012, the Supreme Court granted certiorari for the case of Shelby County v. Holder originating from Shelby County, Alabama, limited to the question of whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.
Oral arguments in Shelby County v. Holder were on February 27, 2013. On June 25, 2013, the Supreme Court struck down, with a 5 to 4 vote, Section 4(b) of Voting Rights Act as unconstitutional while ruling that Section 5 is still permissible.
Background Articles and Videos
Constitutionality of the Voting Rights Act
Why Today Is Better Than Yesterday
Do conservatives have a lot more to be happy about today than yesterday? Yes. Today, the Supreme Court struck down the most onerous element of the Voting Rights Act of 1965 in Shelby County v. Holder. The Act had required several states and localities, almost all in the southern states of the confederacy, to seek permission from the Justice Department or a federal court before changing any electoral procedure. This included the drawing of electoral districts. A separate provision, still in force after Shelby, prohibits individual measures to block access to the ballot on the grounds of race.
The Act made sense in 1965, when Jim Crow still prevented blacks from registering and voting in the South. But it doesn’t anymore. One chart of voting registration by race, found on page 15 of Chief Justice John Roberts’s majority opinion, says it all:
I became a lawyer so I wouldn’t have to work with numbers. But even I get it. After 40 years of the Voting Rights Act, in the original Jim Crow southern states African-American voting registration is actually the same or higher than that of whites. In the last election, African-American turnout was higher than white turnout in five of these six states, and in the sixth state the gap was less than 0.5 percent.
Shelby shows that the Court — albeit by a 5-4 majority — finally came to grips with reality. The Voting Rights Act worked. But it was an extraordinary remedy that intruded on state sovereignty over elections. And like all extraordinary remedies, it was only for unusual times. Those times have come to an end.
But there is one remaining and open question: Will this be bad for Republicans in the South? The Voting Rights Act resulted in an alliance between the NAACP and the Republican party of the 1980s and 1990s to pack minorities into voting districts. This had the effect of ensuring that minorities would be elected to Congress (which the NAACP liked), but diluted minority influence in regular politics by reducing their numbers in all other voting districts (which the Republican party liked). The end of the Voting Rights Act might have the long-term effect of making more congressional seats in the South more competitive and reducing the number of safe seats for members of the congressional black caucus. I would say that that is another victory for the nation wrought by Shelby.
June 26, 2013
Voting Rights Act: Winning the Case While Losing the Principle
Yesterday morning, by a vote of five to four, the U.S. Supreme Court ruled that Congress could no longer rely on data of state racial discrimination affecting voting rights which had been assembled in the 1960’s and 1970’s to justify the preclearance requirement of the Voting Rights Act. Under the preclearance provision (section 4) struck down by the Court, some States and their political subdivisions had been required since 1965 to obtain approval by specified federal authorities in Washington, D.C. before any change in their voting laws can take effect.
Roberts. Justice Thomas wrote aconcurring opinion. A dissent was filed by Justice Ginsburg, with Justices Breyer, Sotomayor, and Kagan.
While the Court ruled that section 4 of the Voting Rights Act was unconstitutional, this decision was anything but a principled victory, and, indeed, has opened the door to further legislation that could be every bit as bad, if not worse, than the section 4 which it struck down.
In the very first paragraph of the majority opinion, Chief Justice Roberts acknowledged the extraordinary nature of two provisions of the Voting Rights Act. Section 5 of the Act requiring “States to obtain federal permission before enacting any law related to voting [is] a drastic departure from basic principles of federalism….” And, Section 4 of the Act “appl[ying] that requirement only to some States – [is] an equally dramatic departure from the principle that all States enjoy equal sovereignty.”
However extraordinary and unprecedented these two sections were viewed, the Court refused to rule that either section was unconstitutional for that reason.
Rather, the Court decided that the Section 4 formula governing whether a particular State or political subdivision was required to get Section 5 permission was unconstitutional solely because it was based upon outdated voting discrimination data.
On two occasions Justice Roberts cited with apparent approval some of the most lawless words ever written by the Supreme Court — words contained in Justice Warren’s opinion approving the original Voting Rights Act of 1965: “exceptional conditions can justify legislative measures not otherwise appropriate.” South Carolina v. Katzenbach, 393 U.S. 301, 309 (1966).
In so ruling, the Court left the door open for Congress to assemble new data to enact into law a new formula whereby some States and their political subdivisions would be singled out for federal preclearance before they would be permitted to make any election law change. And what might that new formula be?
According to Section 5, left intact by the Court, the 1965 Act, as amended, prohibits: (i) any voting procedure that has “any discriminatory purpose” — not just one that worsens one’s exercise of the voting privilege, or (ii) any voting change that diminishes the ability of citizens on account of race, or language minority status “to elect their preferred candidates of choice.” Neither outcome based test was ever envisioned by the Fifteenth Amendment.
The Court invited Congress to replace section 4 with a new and improved version. Indeed, Chief Justice Roberts wrote:
“Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an ‘extraordinary departure from the traditional course of relations between the States and the Federal Government.'”
How refreshing to know that a State’s sovereignty cannot be overridden by the federal government — unless Congress and the President have an important reason to do so.
According to the Court’s decision, then, neither the principle of state sovereignty, nor the principle of state equality, preserved not only by the Tenth Amendment and by the nation’s federal structure dating back to the Declaration of Independence, stands in the way of an affirmative action by Congress that would single out those states that fail to elect to office minority group candidates sufficiently proportionate to their numbers in the population.
Thus, the Shelby County Court opinion frees Congress to amend the 1965 Act to impose new burdens on a new group of States and their political subdivisions — or on all states — just so long as Congress justifies the imposition of new burdens to meet current needs.
In our Shelby County amicus brief, we advocated a legal system that treats each man as man, no more and no less. We urged the Court to strike down not only Section 4 of the 1965 Act, but Section 5 — to close the door to special privileges based upon race — minority, majority, or otherwise. The Court rejected that invitation.
In his concurring opinion, Justice Clarence Thomas claimed that the same reasons that justified the Court to strike down the outmoded formula of Section 4, would justify striking down Section 5 as well. However, until the Court returns to the rule of law — fixed as to time, uniform as to person, and universal as to place — we will continue to be ruled by judges whose opinions change with changing times.
Postscript: To put this case into the context of how the current Court views constitutional principles, just the day before the Court handed down Shelby County, the Court decided Fisher v. University of Texas at Austin. In Fisher the Court refused to adopt the principle of racial equality in the admission of students to the University, permitting race to be used as a factor in the admitting process if it did so in pursuance of a compelling interest to carry out a policy of educational diversity. Thus, once again the Court sidestepped our constitutional commitment in the nation’s charter and in the Fourteenth Amendment to the principle of human equality regardless of race or color, and preserved the right of every justice to decide each case as he pleases, without meaningful constitutional constraint, doing what each believes to be right in his own eyes.
Herb Titus taught constitutional law for 26 years, concluding his academic career as founding dean of Regent Law School. Bill Olson served in three positions in the Reagan administration. They now practice constitutional law together, defending against government excess, at William J. Olson, P.C. They filed an amicus curiae brief in the Shelby County case. They can be reached at email@example.com or twitter.com/OlsonLaw
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