Contact: Jeffrey N. Maclin
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By striking down as unconstitutional Section 4 of the Voting Rights Act, the U.S. Supreme Court today invalidated the coverage formula which determines whether a state or locality’s voting laws will be subject to pre-clearance requirements by the Justice Department. The coverage formula was meant to ensure that states and localities with a history of racial discrimination would not be able to enact laws to perpetuate it at the voting booth. Without Section 4, Section 5, the heart of the Act, which allows the Justice Department to require pre-approval of voting laws in those jurisdictions, is all but useless.
The Voting Rights Act, passed by Congress in 1965, was the most important legislation concerning voting in the 20th century. It required some states – mostly in the South - and local governments – including three boroughs of New York City – Bronx, Brooklyn, and Manhattan - to get Justice Department permission before making changes in voting laws. Without Section 4, we are left with the reverse: When discriminatory laws are instituted by a state or locality, it will now be up to private parties to sue in court order to force changes in the law.
The Supreme Court vote was 5 to 4, with the five conservative justices voting to find Section 4 unconstitutional. Chief Justice Roberts expressed their reasoning in the majority opinion: “The conditions that originally justified these measures no longer characterize voting in these covered jurisdictions.”
That statement is factually incorrect.
One has only to look to last year’s presidential election campaign to see the vast amount of discriminatory legislation in various states, passed with the sole purpose of making it more difficult for certain groups to register and vote. This was evident even on Election Day.
Federal judges knocked down many of these bald-faced attempts to curtail the franchise through voter identification requirements and cutting early voting days. But the long lines in black and Latino voting precincts on Election Day in Florida and Virginia – some people waited six or seven hours to vote – attest to the need for a strong pre-clearance provision.
And these challenges to blatantly discriminatory laws were brought by national and state parties in the midst of extraordinary media coverage. It is doubtful that in the future such legislation on the state and local level with be met with similar financial clout and media focus. Inevitably, some will remain on the books, a throwback to Jim Crow.
Chief Justice Roberts declared that “our decision in no way affects the permanent, nationwide ban on racial discrimination in voting.” Maybe not in a technical sense. But these five justices have taken away any real way to stop discrimination before it is cemented into law.
Congress is entrusted with protecting and ensuring the right to vote, the most basic right of democracy. It may one day enact a new Section 4, setting out which states should be covered by pre-clearance. However, with the extreme partisanship and gridlock now in Congress, that possibility is highly unlikely any time in the near future.