Supreme Court Strikes Part of Voting Rights Act

By Chris Hoenig

The Supreme Court, in a 5-4 decision, has found that Section 4 of the Voting Rights Act of 1965 is unconstitutional.

The ruling, authored by Chief Justice John Roberts, voids the section that sets the jurisdictions that are subject to federal monitoring, “in light of current conditions.” It does not strike down Section 5 of the Act, which requires that certain states and counties get advanced approval to make changes to their election procedures, but says that the formula that determines those jurisdictions is based on outdated data and must be changed.

“In 1966, the coverage formula was rational in both practice and theory,” Roberts writes, arguing that the formula does not take the progress made in slowing discrimination into account. “By 2009, the racial gap in voter registration and turnout [was] lower in the States originally covered by [Section] 5 than it [was] nationwide.”

Roberts also takes issue with the constant renewal of the law—without changing the formula—even though it was initially supposed to expire after five years. A 2006 renewal by Congress is now scheduled to expire in 2031. “Congress did not use that record to fashion a coverage formula grounded in current conditions,” the ruling states. “It instead re-enacted a formula based on 40-year-old facts having no logical relation to the present day.”

Section 4 applied to the states of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, as well as certain counties in California, Florida, New York, North Carolina and South Dakota, and local jurisdictions in Michigan.

The justices raised many of the same concerns in a 2009 ruling, but Congress took no action. Congress will now have to rewrite the formula in order to have oversight over troubled districts. Until then, the threat of objections from Washington that hung over many southern states as they sought to pass election-related proposals will be reduced to little more than a whimper.

Justice Clarence Thomas, part of the majority, wrote separately to say that he would have struck down Section 5, as well. Conversely, Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer, Elena Kagan and Sonya Sotomayor in the minority, wrote that no one doubts that voting discrimination still exists. “But the court today terminates the remedy that proved to be best suited to block that discrimination,” she said as she read the dissent from the bench.

Laws and proposals not already approved by the Justice Department will now be able to go forward without the federal government signing off on them. Civil rights groups had feared this decision, worried that changes at the local level might not see the same type of scrutiny that state legislatures receive when they change voting laws.

“The Supreme Court’s decision is at odds with recent history. The Voting Rights Act was vital in 2012, not just 1965. For nearly five decades, it has been the nation’s most effective tool to eradicate racial discrimination in voting. And it is still critical today,” Michael Waldman, the President of the Brennan Center for Justice at NYU’s School of Law, said in a statement to DiversityInc. “Last year, Section 5 helped block laws making it harder to vote. There is a path forward. Section 5 stands. Congress now has the duty to upgrade this key protection and ensure our elections remain free, fair and accessible for all Americans.”

The lawsuit decided by the Supreme Court was brought by Shelby County, Ala. Located just south of Birmingham, Shelby’s white population exploded during the civil-rights movement in a trend known as “white flight.” As more Blacks registered to vote in Birmingham and Jefferson County, whites fled south into Shelby County, which soon became almost 90 percent white.

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