On Tuesday, the Supreme Court effectively hollowed out the Voting Rights Act by striking down Section 4 of the 1965 law. That provision, the court said, was unconstitutional because it didn't subject all states to the same rules.
Under the Section 4 formula, states found to have historically discriminatory voting processes were subjected to Section 5 of the law, which required them to receive federal approval for any and all changes made to voting practices. Striking down Section 4 essentially voided Section 5, because without a formula to determine which states are required to comply with the preclearance provision, none will be.
The blogosphere reacted to what the decision means for the future of the landmark civil rights legislation:
The Fix's Chris Cillizza said that the Supreme Court asked Congress to create a new formula after striking down Section 4, but that may be easier said than done:
Given Congress' inability to do, well, anything, the idea that they would wade into this incredibly contentious issue at any point in the near future seems unlikely. So, if Congress does nothing, what are the political consequences?
Since the ruling is so fresh, it's difficult to know.
"There will be lots of people on all sides looking at current section 5 covered districts and seeing whether they need to be redrawn to comply with the Constitution," said the Democratic lawyer. "This will likely spur another round of redistricting changes and challenges in some places."
One potential change could be the unspooling of majority-minority districts, which had led to a significant increase in the number of black and Hispanic lawmakers serving in Congress. In states covered by the VRA, line-drawers were required to maintain the number of majority-minority districts or run afoul of pre-clearance. With Section 5 not currently enforceable, states might consider undoing some of those districts — moving reliably Democratic black and Hispanic voters into other more Republican-leaning seats and in some states making it less likely that those seats would elect Democrats.
Ed Kilgore of Political Animal said Congress' political climate almost certainly ensures the Republican House will avoid the topic:
[T]here is no reason whatsoever to think congressional Republicans are going to cooperate in a "fix" of Section 4 until we hear from Mitch McConnell and John Boehner that they want to make it a priority. When that happens (and it could happen if GOP strategists decide that advancing a "fix" that virtually eliminates Section 5 coverage makes more sense than just accepting the Court's decision as making it a dead letter), then we can talk.
It does occur to me, however, that under the same theory whereby it is suggested that House Republicans might get out of the way and let House Democrats (with a smattering of Republicans) enact comprehensive immigration reform, it's theoretically possible, for much of the same rationale of not wanting to get blamed for killing legislation important to minority voters, that House Republicans could "let" Democrats restore Sections 4 and 5.
We should all be able to agree, however, that this emphatically is not the kind of agenda that conservative "base" voters want from "their" U.S. House of Representatives. So psychologically, the advent of a Democratic drive to "fix" the Voting Rights Act may make it even harder for congressional Republicans to quietly cooperate on immigration as well. All sorts of conservative tripwires are being touched, and by the August recess at the latest, a major RINO hunt should be underway wherever Republicans gather.
Hot Air's Ed Morrissey said the Court was right to strike down the logic that had been upholding Section 5 before today's ruling:
[T]he government couldn't even make an argument that the endemic discrimination that required federal interference in state-level legislative processes still existed. They just argued that because the conditions existed 50 years ago, they might still be a problem today — an argument that lends itself to unlimited exercise. Small wonder the court found this irrational.
Will Congress address the court decision with a renovated Section 4? Doubtful, even without Chuck Todd's conclusion that it's not "mature enough" to deal with voting rights at all. The problem left by this decision will be to find someplace in America where state law creates endemic racial and ethnic discrimination at a level that requires federal intervention in the state legislative process. Where might that be?
On the Maddow Blog, Steven Benen said the ruling "guts" the law, and the bipartisan majorities that used to support the law will likely not resurface in today's Congress:
If we wore some kind of Rawlsian veil of ignorance, and forgot everything we know about the contemporary U.S. Congress, this wouldn't necessarily have to be considered a complete disaster. Given widespread voting problems, a competent and capable legislative branch of government might even see the ruling as an opportunity to pursue meaningful election reforms.
But if we drop the veil, we see Congress as it actually is -- an institution where procedural abuses are the norm, an extremist caucus holds control of the lower chamber, the politics of extortion and hostage strategies is routine, and lawmakers struggle badly to complete even rudimentary tasks.
Indeed, I imagine GOP lawmakers will see a strong incentive not to act at all on this issue -- with the 2014 midterms coming up, and Republicans in the majority in so many state legislatures (especially in the South), the party will likely be content to reject all pre-clearance measures and encourage red-state lawmakers to enact sweeping new voting restrictions without fear of Justice Department oversight. In the process, Democratic hopes for electoral gains next November will be further undermined by institutional, not political, barriers.
Snipy of Wonkette points out that the Voting Rights Act said history clearly shows the need for the legislation:
See, if you were historically a terrible racist state or part of a state, the federal government could make you do some math to show that you were not trying to be racist and horrible, and if you didn't show your work or your answer was wrong, the gubmint got to invalidate your racist voting math.
So did the Supremes leave Congress a way to fix this mess by updating the preclearance formula math? Sure, but that only works if you believe you have a functional Congress and HAHAHA YOU DO NOT.
We don't know about you but we've never loved our [expletive] do-nothing Congress less. There's just no way a body this deeply divided is going to come up with some way to fix this, so for all intents and purposes the meaningful parts of the Voting Rights Act just went out the window. And the very bestest part is that you won't have to wait long AT ALL for the bad things to happen!
Josh Israel and Aviva Shen of Think Progress said these consequences would be seen in the next election because the court decision will affect voter ID laws, gerrymandering legislative maps and grassroots get-out-the-vote efforts:
The 15th amendment to the U.S. Constitution guaranteed that the right to vote shall not be abridged on the basis of "race, color, or previous condition servitude." It also expressly granted to Congress the power to "enforce this article by appropriate legislation." Though bipartisan majorities in the Congress and President George W. Bush agreed that this legislation was still needed — and 81 percent of the voter discrimination complaints brought after the laws went into effect were in areas covered by the now eliminated pre-clearance jurisdictions — Justices Alito, Kennedy, Roberts, Scalia, and Thomas have seriously defanged that power and opened the door to significantly more voter suppression.
John Fund of The Corner said the court's decision isn't actually detrimental for civil rights:
The Supreme Court's decision today to overturn a small part of the 1965 Voting Rights Act is actually a victory for civil rights. As the court noted, what made sense both in moral and practical terms almost a half century ago has to be approached anew.
Section 4 of the Voting Rights Act forced states that had poor minority registration or turnout numbers in the 1960s to remain in a permanent penalty box from which they were forced to seek Justice Department approval for the most basic of election-law decisions. Its consideration of state requests for election changes was often arbitrary and partisan, as witnessed by the recent smackdown that the DOJ got from a federal court when it tried to block South Carolina's voter ID law.
The rest of the Voting Rights Act remains in place and will be used to ensure minority voting rights. Congress is free to come up with a different, updated coverage formula for pre-clearance, but given the DOJ's current stained reputation Congressional action looks unlikely in the near future.
Kevin Drum of Mother Jones said it's slightly possible the decision will positively impact Democratic voter turnout, but the more plausible result is benefit for Republicans:
Technically, they didn't rule that preclearance was unconstitutional, only that the particular formula used in the VRA is unconstitutional. This is something that's long been a hobbyhorse of Chief Justice John Roberts, who believes it's implausible that the original set of states covered in 1965 should be the exact same set covered today. He wants Congress to revisit the issue and actively decide which states require preclearance and which ones don't.
Four other justices agreed with him this time, so preclearance is dead. And given the current partisan makeup of Congress, it's vanishingly unlikely that they'll agree to a new formula.
Ten years ago I might have had a smidgen of hope that this would turn out OK. There would be abuses, but maybe not horrible, systematic ones. Today I have little of that hope left. The Republican Party has made it crystal clear that suppressing minority voting is now part of its long-term strategy, and I have little doubt that this will now include hundreds of changes to voting laws around the country that just coincidentally happen to disproportionately benefit whites. There will still be challenges to these laws, but I suspect that the number of cases will be overwhelming and progress will be molasses slow. This ruling is plainly a gift to the GOP for 2014.
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