Supreme Court strikes a blow for a more sensible Voting Rights Act

Today, the Supreme Court decided an important Voting Rights Act case. In Shelby County v. Holder, it held that the formula defining covered jurisdictions for section 5 preclearance is unconstitutional. Amy Goldstein of Scotusblog explains:

The preclearance provisions of the Voting Rights Act were designed to prevent discrimination in voting by requiring all state and local governments with a history of voting discrimination to get approval from the federal government before making any changes to their voting laws or procedures, no matter how small. In an opinion by Chief Justice John Roberts that was joined by Justices Scalia, Kennedy, Thomas, and Alito, the Court did not invalidate the principle that preclearance can be required.

But much more importantly, it held that Section 4 of the Voting Rights Act, which sets out the formula that is used to determine which state and local governments must comply with Section 5’s preapproval requirement, is unconstitutional and can no longer be used. Thus, although Section 5 survives, it will have no actual effect unless and until Congress can enact a new statute to determine who should be covered by it.

John Fund correctly sees this ruling as a “civil rights” victory:

Section 4 of the Voting Rights Act forced states that had poor minority registration or turnout numbers in the 1960s to remain in a permanent penalty box from which they were forced to seek Justice Department approval for the most basic of election-law decisions. Its consideration of state requests for election changes was often arbitrary and partisan, as witnessed by the recent smackdown that the DOJ got from a federal court when it tried to block South Carolina’s voter ID law.

The rest of the Voting Rights Act remains in place and will be used to ensure minority voting rights. Congress is free to come up with a different, updated coverage formula for pre-clearance, but given the DOJ’s current stained reputation Congressional action looks unlikely in the near future.

Clint Bolick, director of litigation for the conservative Goldwater Institute in Arizona, says the demise of Section 5 of the Voting Rights Act will also reduce the balkanization of racial gerrymandering that has become so popular lately. “Voting districts drawn on racial or ethnic lines divide Americans,” he says. “This decision helps move us toward the day in which racial gerrymandering becomes a relic of the past.”

JOHN adds: I see the Court’s decision as a little more far-reaching. It seems to me that the Court has finally declared an end to Reconstruction, and to the institutionalized second-class citizenship of the Southern states. It is noteworthy that Chief Justice Roberts’ opinion places considerable weight on the constitutional principle of equality among the states, and also cites the Tenth Amendment as reposing control over voting procedures with the states. Further, while discriminatory voting practices are still banned under Section 2, what we have come to think of as the “Voting Rights Act” is effectively done for. The Court approved the concept of pre-clearance that is contained in Section 5, but of course there won’t be any pre-clearance until Congress writes new, defensible criteria to replace those the Court struck down–something that I assume will never happen. So the principal provisions of the Voting Rights Act, which should have been allowed to expire long ago–and would have, if that were politically possible–are finally gone.

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