Last month, by a 5 to 4 vote, the U.S. Supreme Court declared unconstitutional Section 4 of the Voting Rights Act, invalidating the formula that 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.
The Voting Rights Act was passed by Congress in 1965. It was 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. 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. When discriminatory laws are instituted by a state or locality, the Justice Department or private parties will now have to sue in court in order to force changes in the law.
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. Just last year, in the presidential election campaign, discriminatory legislation in several states was 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 politicians attempted to limit the franchise in order to make it more difficult for blacks, Latinos, college students, legal immigrants, and urban residents to register and vote.
Federal judges knocked down many of these 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 Voting Rights Act.
Challenges to blatantly discriminatory laws last year 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.
Chief Justice Roberts declared that “our decision in no way affects the permanent, nationwide ban on racial discrimination in voting.” But these five justices have taken away any real way to stop discrimination before it is cemented into law.
And they should have known better. 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 their congressional delegation and state legislature.
Congress may one day enact a new Section 4, setting out which states should be covered by pre-clearance. But with the extreme partisanship and gridlock now in Congress, that possibility is highly unlikely at any time in the near future.