Mrs. Rosa Parks (c) with the Sisters of St. Joseph from Madonna School during a Detroit demonstration for voting rights for blacks in Alabama on March 10, 1965., a photo by Pan-African News Wire File Photos on Flickr.
June 25, 2013
An Assault on the Voting Rights Act
By THE EDITORIAL BOARD
New York Times
The conservative majority on the Roberts Court issued another damaging and intellectually dishonest ruling today. It eviscerated enforcement of the Voting Rights Act, in which Congress kept the Constitution’s promise of a vote for every citizen. But it did not rule on the constitutional validity of the idea that some places have such strong records of discrimination that they must seek federal approval before they may change their voting rules. Instead, the 5-4 ruling usurped Congress’s power and struck down the formula that Congress has repeatedly reauthorized to determine which states fall into that category.
The court invited Congress to rewrite the formula, which has a profoundly disingenuous ring. It’s not the court’s job to legislate, but the justices know full well that Congress, which refused to expand the coverage formula in 2006, is extremely unlikely to take up the offer now. And so the preclearance rule lies dormant.
The Justice Department is still free to sue jurisdictions over their voting policies after the fact, and should, as often as necessary, because such lawsuits will become an even more important tool to ensure justice. But that is not a long-term substitute for the preclearance rule. As Justice Ruth Bader Ginsburg noted in her impassioned dissent, such suits have proven to be a less effective tool against politicians determined to find ways block access to the polls. The jurisdictions covered by the preclearance rule are for the most part firmly in that category.
Chief Justice John Roberts, writing for the majority in Shelby County, Ala. v. Holder, was right when he said that the formula used to determine the jurisdictions that are covered was written long ago — but if anything, the formula is too narrow. Chief Justice Roberts was entirely wrong when he wrote that the states can no longer “be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics.”
A recent study by Morgan Kousser of the California Institute of Technology says that “five-sixths or more of the cases of proven election discrimination from 1957 through 2013 have taken place in jurisdictions” covered by the preclearance rule. In 2006, when Congress reauthorized the voting law after extensive hearings, Representative F. James Sensenbrenner Jr., the conservative Republican from Wisconsin, said the formula is not outdated and that “states covered are not unfairly punished under the coverage formula.”
Today, Justice Ginsburg wrote in dissent that Congress, “with overwhelming support in both Houses” had concluded that the preclearance rule should “continue in force, unabated,” because that would “facilitate completion of the impressive gains thus far made and second, continuance would guard against backsliding.” She said that decision was “well within Congress’ province to make and should elicit this Court’s unstinting approbation.”
Speaking of racially motivated barriers to voting, Justice Ginsburg said: “Early attempts to cope with this vile infection resembled battling the Hydra. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place.” She added: “When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress’ power to act is at its height.”
The problem with the invalidated formula, in our view, is that it does not cover all the jurisdictions that have imposed or tried to impose techniques like racially discriminatory voter I.D. laws. Such efforts have become widespread in areas not governed by the preclearance rule.
The divide between the conservatives and the moderate liberals on the court was vivid today. They disagreed about the power of the court to overturn an act of Congress reauthorized only seven years ago. They disagreed about what the extensive record shows about the need for preclearance as it now exists, and devious efforts by local officials (in most cases, Republican officials) to block blacks and Hispanics from voting or to reduce their electoral power.
Invidious and pervasive voting discrimination has not come to an end, as Chief Justice Roberts suggested with his complaint that “Congress did not use the record it compiled to shape a coverage formula grounded in current conditions.”
The future of the Voting Rights Act now lies in the hands of Congress, first, but also President Obama. If we had a federal government that was not paralyzed by partisanship, this ruling would serve as an inspiration to act. Congressional Democrats would quickly prepare a new and more expansive formula and the Republicans who voted for the old formula just seven years ago would support the new one. Attorney General Eric Holder should lobby for that very action.
President Obama quickly said he was “deeply disappointed” at the ruling and called on Congress to enact a new formula. Tragically, in the age of blind partisanship on Capitol Hill and disappointing follow through in the White House, we cannot count on that happening.