Constitutional Law, Election Law, Minority Issues, Politics, Racism, Ruth Bader Ginsburg, SCOTUS, Supreme Court

The Chief Justice Kills Part Of The Voting Rights Act With Kindness (And A Majority Opinion Saying It Is Unconstitutional)

If I’m ever euthanized, it hope it’s as gentle as the way Chief Justice John Roberts put down the Voting Rights Act’s preclearance requirement.

Not the whole act, mind you. The prohibition on any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color” is still constitutionally permissible. And folks can sue to enforce that.

But the preclearance requbirement is now effectively gone. That’s the rule that the federal government has to approve changes to voting laws in certain jurisdictions that haven’t been so great about race – in that folks registering black people to vote had been murdered in there, or, they’d had really bad records of African-American voter turnout in the past.

Strictly speaking, the preclearance requirement is not gone — it just no longer applies to any jurisdiction in the country any longer. The Court invalidated the method by which it is determined which jurisdictions are subject to preclearance, rather than preclearance itself. So, now no jurisdiction is subject to preclearance — the preclearance formula is gone.

Many people who are concerned about whether black people are allowed to vote think that the preclearance requirement has been an important tool to make sure black people enjoy the right to vote.

Including, it seems, the Chief Justice himself….

The Chief Justice’s opinion removing the preclearance requirement is almost a sonnet to the virtues and importance of the Voting Rights Act. As the Chief Justice announced the opinion today, he seemed mournful, as though he were marking the passing of a friend.

The opinion champions the success of the Voting Rights Act (internal quotations omitted):

By 2009, “the racial gap in voter registration and turnout was lower in the States originally covered by [the preclearance requirement] than it was nationwide. Since that time, Census Bureau data indicate that African-American voter turnout has come to exceed white voter turnout in five of the six States originally covered by [the preclearance requirement], with a gap in the sixth State of less than one half of one percent.

And it is not just in the numbers that one sees change, brought on by the Voting Rights Act:

During the “Freedom Summer” of 1964, in Philadelphia, Mississippi, three men were murdered while working in the area to register African-American voters. See United States v. Price, 383 U. S. 787, 790 (1966). On “Bloody Sunday” in 1965, in Selma, Alabama, police beat and used tear gas against hundreds marching in sup- port of African-American enfranchisement. See Northwest Austin, supra, at 220, n. 3 (THOMAS, J., concurring in judgment in part and dissenting in part). Today both of those towns are governed by African-American mayors. Problems remain in these States and others, but there is no denying that, due to the Voting Rights Act, our Nation has made great strides.

The Chief Justice took care to point to these examples from the bench. And he seemed genuinely moved by these struggles in the past.

(Let me note, as an aside, how completely bizarre and insular the world of the Court (and the legal profession generally) is: the best authority for people being teared gassed, beaten, and murdered are citations to Supreme Court cases written years later.)

Indeed, the Court’s opinion makes clear that even though the success of the Voting Rights Act is powerful, the work of justice is not complete – “At the same time, voting discrimination still exists; no one doubts that.”

The question is simply different now:

The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, “the Act imposes current burdens and must be justified by current needs.”

And, well, as it happens, the Act is not justified by current needs.

The Voting Rights Act — whose purpose the Chief Justice is really totally in favor of — has been so successful that Congress really needs to think hard about how to decide if it still matters.

So, no more preclearance requirement from the Voting Rights Act.

Justice Ginsburg announced her dissent from the bench (internal citations omitted):

“[V]oting discrimination still exists; no one doubts that.” But the Court today terminates the remedy that proved to be best suited to block that discrimination.

Of course, Congress could undo this if it comes up with a new formula. Which, since it doesn’t affect business travelers, seems unlikely to warrant congressional action.

Tomorrow the Court will announce its last opinions of the term. Finally, the gay stuff.

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

Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.

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