On Tuesday, the Supreme Court announced that Section 4 of the Voting Rights Act is unconstitutional. This statute of the 1965 law is the “coverage formula” which determines which states and jurisdictions are subject to Section 5, or the preclearance provision.
Section 5 requires states to get permission from the federal government before they make any changes to local voting procedures, and was originally intended to prevent discriminatory voting procedures aimed at limiting voter turnout. These included things like literacy tests, as well as preventing redistricting and polling place changes that could restrict minority access to voting.
In striking down Section 4 of the Voting Rights Act, the Supreme Court has effectively rendered Section 5 null, because without a formula to determine which states must receive preclearance from the federal government, none will be required to do so.
Section 4 is used to decide which areas of the country are still subject to the law originally passed nearly 50 years ago. The court, in Shelby County vs. Holder, alleged that continuing to subject states to these requirements was unconstitutional because not all states were required to follow the same rules. Shelby County maintained that it wasn't fair to continue to subject certain states and jurisdictions to the preclearance provision purely because they had histories of discrimination.
The decision was 5-4, with Chief Justice John Roberts delivering the majority opinion. He was joined by the court's other conservatives, Justices Atonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito. Justice Ruth Bader Ginsburg filed a dissenting opinion and was joined by Justices Stephen Breyer, Sonia Sotomayor and Elana Kagan.
In discussing the measures to prevent voting discrimination, Roberts wrote that the court had to consider whether it was constitutional to require only states with a history of discrimination to continue abiding by Section 5:
Nearly 50 years later, [the rules] are still in effect; indeed, they have been made more stringent, and are now scheduled to last until 2031. There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.
At the same time, voting discrimination still exists; no one doubts that. The question is whether the Act's extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements.
Proponents of Section 5 say the provisions are still required to prevent disenfranchisement, alleging that equal access to voting has still not been achieved in the United States. Sherrilyn Ifll, president and director-counsel of the NAACP Legal Defense and Educational Fund, said the Supreme Court has no place striking down part of the 1965 law:
The Supreme Court's decision today to strike down a key part of the Voting Rights Act is an act of extraordinary judicial overreach. The Supreme Court ruling takes the most powerful tool our nation has to defend minority voting rights out of commission. By second-guessing Congress' judgment about which places should be covered by Section 5 of the Voting Rights Act, the Court has left millions of minority voters without the mechanism that has allowed them to stop voting discrimination before it occurs. This is like letting you keep your car, but taking away the keys. To say that I am disappointed is an understatement. Congress must step in.
Congress has repeatedly extended the voting rights law, but must draft and pass new coverage formula requirements if the law will continue to have its intended effect.
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