Last week, the U.S. Supreme Court, by a 5 to 4 margin, struck down a central section of the Voting Rights Act, one of the monumental achievements of the civil rights era.
By declaring unconstitutional Section 4 of the Act, the Court 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 discrimination 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.
Extending the Franchise
The Voting Rights Act, passed by Congress in 1965, was the most important legislation concerning voting in the 20th century. It was, in fact, the last great extension of the franchise in the United States, bringing the power and authority of the federal government to bear against racial discrimination in voting laws. Over the past four decades, black voters and black elected officials – in particular – changed the nature of politics in many states and localities across the country. It is all but certain that Barack Obama could not have been elected president in 2008 without the effects of the Voting Rights Act.
The Act 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. Section 2 of the law: When discriminatory laws are instituted by a state or locality, it will now be up to the Justice Department or private parties to sue in court in order to force changes in the law. This type of legal action is difficult and expensive.
The five conservative justices voted 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.
Right wing attempts to limit the franchise took place in many states last year, seeking to made it more difficult for blacks, Latinos, college students, legal immigrants, and urban residents to register and vote. Not being able to win a presidential election fair and square, they tried an end run around the law.
Pre-Clearance Still Needed
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.
Not surprisingly, one day after the Court’s decision, Texas was pushing a voter identification card bill – based on the phony premise of voter fraud - and an election district map heavily gerrymandered to decrease Latino and black representation in Washington and the state legislature.
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 at any time in the near future.