by Jeremy Leaming
The Supreme Court’s conservative majority has been itching to gut the landmark Voting Rights Act for some time and today it took a big step toward doing so. The conservative bloc led by Chief Justice John Roberts Jr. invalidated Section 4 of the Voting Rights Act (VRA), which includes a formula for determining the states, towns and localities that must obtain approval or preclearance from the federal government for proposed changes to their voting laws and procedures.
In its 2009 opinion in Northwest Austin Municipal Util. Dist. No. One v. Mukasey, the conservative justices avoided the constitutional challenge to the heart of the Voting Rights Act, but nonetheless reiterated their desire to gut it.
This time around a constitutional challenge brought by officials in a mostly white Alabama County gave the conservative bloc what it needed. Writing for the majority in Shelby County v. Holder, Roberts noted that in Northwest, his conservative colleagues “expressed serious doubt about the Act’s continued constitutionality.”
Roberts continued, “We explained that Sec. 5 ‘imposes substantial federalism costs’ and ‘differentiates between States, despite our historic tradition that all the States enjoy equal sovereignty.’ We also noted that ‘[t]hings have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.’ Finally we questioned whether the problems that Sec. 5 meant to address were still ‘concentrated in the jurisdictions singled out for preclearance.’” Sec. 4 includes the forumla for deciding what jursidictions must comply with the VRA's Sec. 5 preclearance provision.
Though the case raised constitutional claims of equality among Americans, like ensuring minorities are not deprived of a fundamental right to vote, the conservative justices in Shelby were much more interested in equality among the states. As they put, citing Northwest, a “fundamental principle of equal sovereignty. Over a hundred years ago, this Court explained that our Nation ‘was and is a union of States, equal in power, dignity and authority.’ Indeed, ‘the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.’”
“The Voting Rights Act sharply departs from these basic principles,” Roberts wrote. “It suspends ‘all changes to state election law – however innocuous – until they have been precleared by federal authorities in Washington, D.C.”
The conservative bloc was also incredibly confident that voter discrimination in the covered jurisdictions, mostly in the South, is a thing of the past. The majority pointed to an increase in minority registration and turnout.
While voter discrimination allegedly subsided, Congress made the VRA more stringent and its formula for determining covered jurisdictions remained static, the majority groused. “Coverage today is based on decades-old data and eradicated practices,” Roberts wrote.
When Congress reauthorized the VRA in 1996, which it did overwhelmingly, it should have altered its coverage formula, Roberts argued. “It instead reenacted a formula based on 40-year-old facts having no logical relationship to the present day,” he said.
Roberts also claimed that the majority was carefully invalidating a provision of the VRA, and maintained the Court was providing “no holding” on Section 5. Instead Roberts said Congress could create a new formula.
The dissent, lodged by Justice Ruth Bader Ginsburg and joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, however, found that the majority had usurped a job for Congress, and in a rather sloppy manner. (Congress, Ginsburg wrote, should be given deference in its constitutional authority to create appropriate legislation to enforce the 14th and 15th Amendments.)