The Voting Rights Act was not broken, but now, thanks to the Supreme Court, Congress and the Justice Department have to try to fix it. It is a daunting challenge, but perhaps not impossible.
The court’s 5-4 decision in Shelby County v. Holder [June 25] to strike down a key provision of the 1965 law is long in praising the act’s historic accomplishments and short in documenting its supposed present-day harms. Chief Justice John G. Roberts cites with statistics the dramatic improvements in voter registration and turnout among African Americans in the Deep South. “There is no doubt,” Roberts writes for the majority, “that these improvements are in large part because of the Voting Rights Act.”
One might take that as an endorsement of the law and justification for Congress’s decision in 2006 to extend the law for another 25 years, including the proven-to-be-effective enforcement mechanism: the preclearance provision in section 5 that applies to nine states and parts of six others. Instead, Roberts and his four conservative colleagues threw out the formula used to determine the states that have to preclear voting changes with the Justice Department or a federal court.
The harm from this provision, according to the majority, is its “drastic departure from federalism” and “from the principle that all States enjoy equal sovereignty.” The Constitution supposedly forbids Congress from treating one state or group of states differently from others without very good reasons.
This may sound right in theory, but, as Justice Ruth Bader Ginsburg shows in a well documented dissent, it is not correct in practice. Congress routinely treats states differently, for reasons far less compelling than protecting the right to vote. Sports-related gambling is prohibited nationwide except for any state that allowed it in 1976 (read: Nevada). Appropriation measures often include obscurely phrased funding formulas designed to favor individual states or groups of states.
No less a figure than Michael McConnell, a conservative law professor and former federal judge, says the Court’s supposed principle is just “made up.” “There’s no requirement in the Constitution to treat all the states the same,” McConnell remarked in an interview with NPR’s Nina Totenberg. “It might be an attractive principle, but it doesn’t seem to be in the Constitution.”
Roberts says the other harm from the Voting Rights Act is that states and localities covered by the preclearance requirement are delayed or preventing from adopting “validly enacted laws.” But the voting changes may or may not be validly enacted. The unchallenged Voting Rights Act section 2 makes it illegal for any jurisdiction, nationwide, to enact a voting change that has the intent or the effect of discriminating against a racial or language minority.
The Justice Department or federal court applied essentially the same standard in reviewing proposed changes. So, any changes that were disallowed a vanishingly small fraction had been found by an official body to be, in fact, illegal under federal law. A proper view of the preclearance requirement is that it prevented the enactment of invalid laws a benefit in protecting voting rights, not a harm, as the Supreme Court conservatives believed.
The Court made its decision, however, and Congress and the Justice Department now have to live with it. Roberts stressed that the preclearance requirement remains on the books and Congress is free to craft a new coverage formula.
Without a coverage formula, the preclearance requirement is as Ginsburg wrote in her dissent “immobilized.” Political realities make it unlikely that Congress can enact a formula that recognizably identifies the worst of the bad actors in voting rights for preclearance coverage. But the possibility of salvaging something of the preclearance requirement is less remote than pessimistic lawmakers and realistic Capitol Hill observers depicted immediately after the ruling.
A New York Times editorial a few days later [June 29] pointed to some of the ways that Congress or the Justice Department can respond to blunt the impact of the Corut’s decision. For starters, the Times noted that the act’s “bail-in” procedure in section 3, untouched by the decision, allows the Justice Department to ask a court to extend the preclearance requirement to a designated jurisdiction upon proof of intentional racial discrimination in voting.
The Times notes that intentional discrimination is hard to prove, but it is not impossible. The state of Texas, as one example, was found to have intentionally discriminated against Latino voters in redrawing congressional lines in 2003. And minority group plaintiffs filed a federal court action after the latest ruling seeking to invoke section 3 to block Texas from implementing its voter ID law.
The Times suggests that Congress could make section 5 usable again by requiring preclearance for any state to have violated a federal election law in the last few years. Such an objective requirement would meet the Supreme Court’s criterion that preclearance be based on “current conditions.” It would impose preclearance again on most of the southern states and on others, but recidivist voting rights violators would have a hard time complaining about being unfairly singled out.
The Supreme Court won little praise for its decision to gut the Voting Rights Act. The only poll conducted so far found a majority of Americans opposed to the ruling, The Court has given a lemon to Congress and the Justice Department; their job now is to make lemonade out of it.