In a 5-4 decision, the court ruled the formula that determines which states must get elections changes pre-approved by the federal government is unconstitutional. That formula determines which states are covered under the act’s Section 5, which applied to all or part of 16 states.
Supreme Court Chief Justice John Roberts wrote that the formula was outdated. “Our country has changed,” he wrote in the majority opinion, going on to list voter registration data from states subject to Section 5. “The conditions that originally justified these measures no longer characterize voting in the covered jurisdictions."
Up until the court’s ruling Tuesday, Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia were all covered by Section 5’s preclearance requirement. Parts of California, Florida, New York, North Carolina, South Dakota and Michigan were as well.
The main question before the court was whether the act’s preclearance requirement was still necessary given the progress in U.S. race relations since it was enacted in 1965. First approved as a temporary part of the broader Voting Rights Act, the measure targeted areas of the country where racial discrimination was of most concern and conventional lawsuits and countermeasures to voter disenfranchisement were seen as insufficient.
“No one should be fooled by the Pollyannaish fantasy that voting discrimination no longer exists,” said Wade Henderson, head of the Leadership Conference on Civil and Human Rights. "Today’s decision is a setback to our democracy and the voting rights of real Americans.”
The coverage formula is essentially what made Section 5 work, as it determined where the preclearance requirement applied. Over the years, the Supreme Court and others have urged Congress to rework and update the formula. But lawmakers never reached an agreement on how to do that, and so it was simply reauthorized instead.
Congress could now rework the formula to bring the preclearance requirement in line with the court’s ruling, but few expect lawmakers would be able to agree on a new measure. That means the court’s ruling on the formula effectively ends the preclearance requirement.
Tuesday’s ruling sided with officials from Alabama’s Shelby County, which brought the challenge before the court. They argued that the preclearance requirement was unconstitutional on its face because conditions on the ground no longer justified the different treatment among states and the immense federal power to block local laws before they are enacted.
The decision extends far beyond Alabama, though, and many states had signed on to support Shelby County. More broadly, the Section 5-driven disputes also encompassed a wave of pro-states’-rights sentiments in many states, particularly those controlled by Republicans.
In recent years, preclearance has become a key component in the legal battles over issues such as redistricting and voter ID requirements, particularly as some states were blocked from enacting laws similar to those that had taken effect in others not covered under Section 5.
A legal battle between Texas officials and the Justice Department over that state’s voter ID law, waged under the auspices of the federal government’s Section 5 preclearance authority, has blocked the measure. A similar fight is credited with South Carolina significantly weakening its voter ID law before it was eventually allowed to take effect.
“Laws that apply unequally to just some states have no place in our nation,” Texas Attorney General Greg Abbott said. “Today’s ruling ensures that Texas is no longer one of just a few states that must seek approval from the federal government before its election laws can take effect.”
Without the preclearance requirement, voting rights advocates — and the members of the Supreme Court who dissented from Tuesday’s decision — worry that states will be freer to enact measures that could disenfranchise thousands of voters.
A Brennan Center report released recently highlighted a number of provisions that could take effect in a world without Section 5, and Justice Ruth Bader Ginsburg expressed similar worries Tuesday.
“The Court today terminates the remedy that proved to be best suited to block (voter) discrimination,” Ginsburg wrote in her dissent, which was joined by justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. “The Voting Rights Act of 1965 (VRA) has worked to combat voting discrimination where other remedies had been tried and failed. Particularly effective is the VRA’s requirement of federal preclearance for all changes to voting laws in the regions of the country with the most aggravated records of rank discrimination against minority voting rights.”
But the states that fought Section 5 — and now a majority of the Supreme Court — dismiss those concerns. They point to improved race relations and increasing parity among white and non-white voters as evidence that the coverage formula is outdated.
“While any racial discrimination in voting is too much,” Roberts wrote, “Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”
Tuesday’s ruling isn’t likely to mean an end to the legal battles over elections nationwide, though, and indeed Roberts pointed out that the Voting Rights Act still allows for challenges against potentially unconstitutional elections laws.
Still, the Supreme Court’s decision is a blow for voting rights advocates, as those fights will now be tougher to wage without the power of Section 5 to wield in any future disputes.
“The number of discriminatory changes blocked or deterred by the preclearance requirement suggests that the state of voting rights in the covered jurisdictions would have been significantly different absent this remedy,” Ginsburg wrote.
As Daniel Tokaji, a law professor at Ohio State University, told Stateline, recent actions in the states “make the Voting Rights Act more important than it might have seemed even a decade ago.”
“We’ve seen pretty blatant attempts in some states to impose new barriers to voting,” he said.
Reprinted courtesy of Stateline, a nonpartisan, nonprofit news service of the Pew Charitable Trusts that provides daily reporting and analysis on trends in state policy.
