The Demise of The Voting Rights Act

Last week, the Supreme Court of the United States ruled that Section 4(b) of the Voting Rights Act (VRA) was unconstitutional, and did so on the grounds that the increased voter registration, voter turnout and increased minority office-holders make preclearance a hindrance on state sovereignty. Analytically, the court asserted that the rationale behind the formula behind preclearance was flawed, as it was premised on data and socio-political conditions from nearly 50 years ago.  Writing for the Court, Chief Justice Roberts stated that “the government’s defense of the formula is limited….the government’s reverse-engineering argument does not even attempt to demonstrate the continued relevance of the formula to the problem it targets. And in the context of a decision as significant as this one….that failure to establish even relevance is fatal.”

History of the Voting Rights Act

Signed into law in 1965, the VRA is a landmark piece of civil rights legislation that made it illegal to engage in discriminatory and racist voting practices in the United States of America. The VRA is important enforcement legislation, for as the 15^th Amendment of the U.S. Constitution was ratified in 1870 and asserted that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude,” there was no ascription of citizenship to people of color. As such, the late 19^th century ushered in an era of state introductions to the voting process for people of color and the introduction of literacy tests, knowledge tests, and other requirements in the voting process in order to forbid voter participation by people of color.

The VRA afforded Congress and the Federal Government oversight over the electoral process; it was illegal to openly discriminate against people of color through the voting process, and the limits of the VRA codified the manifest directives of the 15^th amendment.  Section 2 of the VRA prohibited the abridgement of the rights of an American citizen to vote, on account of race or color, in any of the 50 states of the union. Section 4(b) of the VRA provided the coverage formula – a formula by which a determination was made that a state, county or subdivision met the dual conditions of:  (a) employing the use of tests and devices for voter registration, and (b) has demonstrated a voting rate of people of color at a specified percentage below the national average (satisfaction of both of these conditions were necessary to be classed as a “covered” jurisdiction).  In covered jurisdictions, the use of tests and devices for the purposes of voter registration were illegal.  Section 5 of the VRA specified that for the “covered” jurisdictions, any proposed changes to the voting process in that jurisdiction has to be approved by Federal authorities; as such, a “preclearance” in this instance would be granted only if the proposed changes demonstrated no pernicious effect on the voting rights of people of color.

The Supreme Court Ruling

Writing the dissent, Justice Ginsburg noted that before Congress reauthorized the VRA in 2006, there was much data collection and document gathering that occurred in order to support the decision-making matrixes in both arms of Congress. Justice Ginsburg noted that Congress had amassed a detailed and expansive set of recordings that documented the long histories of widespread discrimination in covered jurisdictions. It was noted in the dissent that the US Department of Justice blocked mote than 700 voting changes on the basis that the changes were discriminatory (1982-2006), and this was demonstrated evidence of the need for preclearance in order to combat second-generation barriers, for example.  For the dissent, the current burdens on the covered jurisdictions were based on the current situational needs, and preclearance was and is necessary.

There are several troubling aspects to all of this. First, Chief Justice Roberts asserts, in the opinion of the Supreme Court, that “voting discrimination still exists – no one doubts that.”  That said, rationality, though bounded, would assert that the Supreme Court would not strike down an Act of Congress so offensively. Secondly, the striking down of Section 4(b) makes Section 5 null; and, as Justice Thomas stated in his concurring statement, “I would find Section 5 unconstitutional.” Third, the arms of Congress should have been working on a coverage formula prior to 2009, the year in which they had a chance (according to Chief Justice Roberts) to update it.

Analytically, taken together all of this is bad news for the VRA, unless the legislative and executive arms of government work together to address the problems that have been brewing for years around these very issues. Ideologically and pragmatically, the judicial arm of government, with Chief Roberts at the helm, are poised to roll-back other civil-rights gains  in the name of good government (aka no more racial/ethnic protection, ever!!).  But this discussion is not about race, or gender, or sexual orientation, or socioeconomic status, political affiliation [or lack thereof], or educational attainment level, correct? This is about the right to vote without prejudice, this is about the imperative to have your vote count, correct? Or is this about the coalescing of a series of agendas that are finally revealing themselves to the American populace?  Every American should raise their voices to their highest political decibel and be heard on this issue, as this is one that will define generations to come.

As we all know, voting discrimination is alive and well………….. Just ask Chief Justice Roberts.