Supreme Court rules new criteria needed for determining racist states

By David Ferguson
Tuesday, June 25, 2013 10:45 EDT
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Chief Justice John Roberts via McConnell Center / Flickr
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The U.S. Supreme Court announced its decision Tuesday morning in the case of Shelby County, Alabama v. Eric Holder, U.S. Attorney General, finding that Section 4 of the Voting Rights Act is unconstitutional. According to the SCOTUSblog, the court ruled 5 to 4 in the case with Chief Justice John Roberts writing the decision and Justice Ginsberg writing the dissent.

Under Section IV of the Voting Rights Act, the landmark civil rights legislation passed in 1965, a formula was established for determining which states in the U.S. were unfairly targeting minority voters with polling place practices and other barriers to voting.

According to the SCOTUSblog, the criteria set forth in Section 4 is no longer relevant or constitutional. This means that Section 5, which mandates that states with a history of racial discrimination in voting must submit any changes to election law to the federal government before implementation, no longer has an accurate metric by which to measure the level of discrimination in an area.

Justice Thomas wrote a concurrence to the Chief Justice’s ruling, but went even further, saying that the invalidation of Section 4 makes Section 5 unnecessary altogether.

The Lawyers’ Committee for Civil Rights, which brought the suit on behalf of Shelby County resident Bobby Lee Harris responded to Tuesday’s ruling in a press release.

Chief Counsel John Greenbaum said, “The Supreme Court has effectively gutted one of the nation’s most important and effective civil rights laws. Minority voters in places with a record of discrimination are now at greater risk of being disenfranchised than they have been in decades. Today’s decision is a blow to democracy. Jurisdictions will be able to enact policies which prevent minorities from voting, and the only recourse these citizens will have will be expensive and time-consuming litigation.”

President and Executive Director Barbara Arnwine said in the statement, “This decision disregards the documented history of ongoing voting discrimination in the covered states and paralyzes Section 5, which has blocked thousands of racially discriminatory voting practices and procedures before they could ever take effect. Civil rights and civic organizations must now unite with the American people – fighting new discriminatory voting laws lawsuit by lawsuit and state by state – until Congress acts decisively to replace what has been one of the most effective civil rights laws ever passed.”

UPDATE: In the opinion, Chief Justice Roberts wrote that “Shelby County is located in Alabama, a covered jurisdiction” under the “preclearance” rules that state that all electoral changes must be approved by the federal government. Noting that Section 2, the section of the Civil Rights Act making racial discrimination at the polls illegal all over the country, is still intact, Robert said that he believes that the protections afforded under Section 2 are sufficient.

Citing prior legal precedent, Roberts said that for the federal government to decide which state laws are permissible is an overreach of the federal government’s authority, writing, “Not only do States retain sovereignty under the Constitution, there is also a ‘fundamental principle of equal sovereignty’ among the States.”

He continued, “At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States. 557 U. S., at 203.”

Therefore, he said, “The Voting Rights Act sharply departs from these basic principles. It suspends ‘all changes to state election law—however innocuous—until they have been precleared by federal authorities in Washington, D. C.’ and as such violates the states’ rights to self-determination.

Shelby County, Alabama argued in its case that 50 years after its inception, Section 4 has ceased to be a reliable barometer of an area’s racial bias. Roberts wrote, “Its arguments have a good deal of force” because so much progress has purportedly been made.

“There is no doubt that these improvements are in large part because of the Voting Rights Act. The Act has proved immensely successful at redressing racial discrimination and integrating the voting process,” he wrote. But now, the VRA just isn’t as necessary and the criteria held forth in Section 4 are outdated.

“Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in Section 2,” he concluded. “We issue no holding on Section 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.”

UPDATE: In her dissent, Justice Ginsberg took sharp exception to Chief Justice Roberts’ reasoning, writing, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

“The grand aim of the Act is to secure to all in our polity equal citizen­ship stature, a voice in our democracy undiluted by race. As the record for the 2006 reauthorization makes abundantly clear, second-generation barriers to minority voting rights have emerged in the covered jurisdictions as at­tempted substitutes for the first-generation barriers that originally triggered preclearance in those jurisdictions,” she wrote, meaning that for every barrier to voting the VRA removed, racist state officials have attempted to create new barriers like Voter ID laws and the cancelation of early voting hours.

“The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclear­ance is no longer needed,” Ginsberg said.

“With that belief, and the argument derived from it, history repeats itself,” she wrote.

UPDATE: In a conference call with activists, Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights, called on Congress to act swiftly to respond the Supreme Court’s repudiation of its findings in the 2006 renewal of the Voting Rights Act.

“Section 5 is a vital tool to protect voters from losing their right to vote simply because of their race, and in 2006, on an overwhelmingly bipartisan basis, Congress determined where that protection was still needed based on historical and ongoing discrimination,” he said. “In today’s decision, a majority of the Court overruled the well-researched and well-considered judgment of Congress about where these protections were still needed.”

Sherrilyn Ifill of the NAACP’s Legal Defense and Education Fund said that the Court’s high-handed invalidation of Congress’ 2006 renewal of the VRA will “leave unprotected millions of minority voters in jurisdictions throughout this country who counted on Section 5 to protect them from voting discrimination before it happens.”

Lawyers’ Committee for Civil Rights president and CEO Barbara Arnwine called Tuesday’s decision a “terrible betrayal of the American people.” She called on Congress to “get creative” in its effort to reassert its authority as a coequal branch of government to the Court.

Other activists including Lachlan McDonald of the ACLU, Nina Perales of the Mexican-American Legal Defense and Educational Fund, Ryan Anderson of the NAACP and John Greenbaum of the Lawyers’ Committee for Civil Rights all called on Congress to put aside its differences and work together to guarantee equal access to voting by every American, regardless of race.

[image of Chief Justice John Roberts via the McConnell Center's Flickr Photostream, Creative Commons licensed]

David Ferguson
David Ferguson
David Ferguson is an editor at Raw Story. He was previously writer and radio producer in Athens, Georgia, hosting two shows for Georgia Public Broadcasting and blogging at Firedoglake.com and elsewhere. He is currently working on a book.
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