Constitutional Law, Election Law, John Roberts, Minority Issues, Politics, Racism, SCOTUS, Supreme Court

Supreme Court Rules That Section 4 of the Voting Rights Act Is Unconstitutional

Section 4 of the Voting Rights Act has been struck down. Is there anything left?

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Free at last, free at last, thank God almighty, the South is free at last.

After, man, like decades of having to deal with suspicion and preclearance, man, just because of its 400 year history of slavery and segregation, Chief Justice Roberts held Section 4 of the Voting Rights Act as unconstitutional. Section 4 is the section that outlines which states should be covered for “preclearance” by the federal government before they can change their voting laws. Overruling it overturns one of the biggest and most effective weapons against the Jim Crow South.

Section 5, which gives the government the authority to preclear certain states, still survives. The question is kicked back to Congress to update their “decades old” formula.

Let’s look at the opinions…

To be clear, while this doesn’t look as bad as striking down Section 5, given Congress, the force and effect is almost as bad. Professor Rick Hasen on Election Law Blog writes:

I expect the majority to try to downplay its decision as merely striking the coverage formula and not section 5 itself, but I don’t expect fairminded observers to buy it: because of intense polarization in Congress and controversy over the DOJ itself, I cannot imagine the current Congress passing a new set of jurisdictions subject to Section 5 preclearance. This will mean that Section 5 will effectively be dead.

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Here is the key phrase from Chief Justice Roberts’s opinion:

Our decision in no way affects the permanent, nation-wide ban on racial discrimination in voting found in §2. We issue no holding on §5 itself, only on the coverage formula. 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.” Presley, 502 U. S., at 500–501. Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.

So, racism is still illegal, but the Court has just eviscerated a main way of preventing it.

Ginsburg’s dissent:

The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclear­ ance is no longer needed. Ante , at 21–22, 23–24. With that belief, and the argument derived from it, history repeats itself. The same assumption—that the problem could be solved when particular methods of voting discrim­ination are identified and eliminated—was indulged and proved wrong repeatedly prior to the VRA’s enactment.

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Slavery wasn’t built in a day. And its legacy won’t be taken down in a generation. But we’ve seen this before in American history. Reconstruction was declared “over” in 1876. Chief Justice Roberts says that any discrimination is too much, but clearly he is willing to deal with some amount of it while he waits for Congress to act (if it acts at all). We’ll see if history judges him as harshly as Rutherford B. Hayes.

As far as Congress is concerned, there are way too many of them who will view this decision as “the nation-wide ban on racial discrimination” having been lifted.

Shelby County, Alabama v. Holder [U.S. Supreme Court Opinion]
My Prediction in the Shelby County Case [Election Law Blog]

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