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Supremes Get It Right On Voting Rights

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Supreme Court Building

On Tuesday, the Supreme Court voided a key provision of the Voting Rights Act (VRA) of 1965, specifically Section 4(b), which lays out a specific formula by which jurisdictions with a history of discriminatory voting practices are compelled to seek pre-approval for any electoral changes that might impact voting rights.  Prior to this decision, there were nine states (mostly in the South) that were required to get pre-clearance (as governed by Section 5) from either the US Attorney General or the federal district court in the District of Columbia.  There are seven other states that have individual jurisdictional subdivisions that fell under the provisions of Sections 4 & 5 of the VRA.  In North Carolina, we had forty counties that were subject to these pre-approval requirements.  To be clear, the Supreme Court did not invalidate the pre-approval requirements of the VRA’s Section 5, but instead struck the coverage formula of Section 4 that determines which jurisdictions must seek approval.

The immediate result of this decision is that no state or local jurisdictions can be required under Section 5 to submit proposals for pre-approval until Congress rewrites the coverage formula under Section 4 of the Act.  “Covered” states and lesser political subdivisions may now proceed with voter ID, redistricting and other electoral changes without these initial obstacles. That being said, all states and localities are still vulnerable to lawsuits brought by the Attorney General or private parties (with standing) where denials or abridgments of the right to vote are alleged.

There has been quite a hue and cry from the political left deriding this decision as a setback for voting rights.  Even President Obama has chimed in, saying he was “deeply disappointed” over this decision which “upsets decades of well-established practices that help make sure voting is fair.”  Donna Brazile suggested the Court dishonored “citizens [who] withstood beatings, fire hoses and dogs to see the law passed.”  The Rev. Al Sharpton flatly declared that “the Supreme Court canceled the dream” of Martin Luther King, Jr., and Democratic Rep. Wasserman-Schultz chided the Court with her intonation that “voting rights should be expanded, not limited.”

Polemics aside, I contend the Court got it right here.  Section 4’s coverage formula for determining what jurisdictions fall under the Section 5 pre-approval requirements is today woefully outdated.  Specifically, only those jurisdictions that had 1) vote-suppressing “tests and devices” in November 1964 such as literacy tests and poll taxes and 2) either 50% or less of their voting age citizens registered in November 1964, or less than 50% registered voter participation in the1964 presidential election are required to submit to pre-clearance.

Poll taxes and literacy tests are today but a distant memory.  No serious person in 2013 can argue that these or similar outright voter suppression schemes are a contemporary problem.  It is patently absurd, too, to base jurisdictional coverage of these provisions of the Act on voting and registration patterns as they existed nearly 50 years ago.  It is also important to note that individual jurisdictions all over the country have been gradually escaping Section 5 coverage anyway by qualifying under the “bailout” provisions of the Act.  My own home county of Wake in North Carolina is but one of many examples of this.

Neither critics nor our Congressional representatives can say they didn’t see this decision coming.  Four years ago the Court warned (but did not hold) in NAMUDNO v. Holder that Congress needed to update the Section 4 criteria.  It is also important to note that the VRA was passed in 1965 as a temporary but forceful federal remedy in response to obvious voter suppression, and originally only had a life of five years.  Subsequently, Congress chose to extend its life in 1970, 1975, 1982 and most recently in 2006, however, it did so without bothering to make any substantive changes to the Section 4(b) coverage formula.  In failing to address this formula for nearly 50 years, Congress through its inaction has made this section irrelevant, even under the very generous rational basis standard of review the Court used here.

Despite what some of the reckless commentary out there suggests, the Supreme Court did not bring into question the constitutionality of the Voting Rights Act itself.  Section 1 of the 15th Amendment informs the VRA, and Section 2 of the Amendment specifically authorizes the statute. This Court enthusiastically confirms as much.  In short, all the Court did here was strike down a section that had long ceased to have any relevance whatsoever in determining what jurisdictions deserved the special pre-clearance treatment.

As a result, the law’s application in this area is admittedly in limbo.  Nevertheless, the Court made the right decision.  Perhaps this holding in Shelby County v. Holder will prompt a long-overdue debate nationally and within the halls of Congress as to the need and extent of federal voting rights protections pursuant to the 15th Amendment to the US Constitution.

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