In its ruling Tuesday on the Voting Rights Act, the U.S. Supreme Court acknowledged the continued existence of voting discrimination. But only the shiniest of optimists would see positive news in the court’s decision. By declaring unconstitutional the formula set forth in the act to determine which state and local governments should seek “preclearance” from the federal government before making election changes, the court rendered the Voting Rights Act all but useless.
It’s a cynical ruling. By issuing “no holding” on Section 5, the preclearance provision it was asked to consider in Shelby County v. Holder, while finding the preclearance formula in Section 4 currently out of step with the Constitution, the court placed the future of the Voting Rights Act in the hands of a partisan-paralyzed Congress. Washing its hands, the court’s 5-4 majority then walks away from the issue.
Because the Voting Rights Act is “based on decades-old data and eradicated practices,” Chief Justice John Roberts wrote, Congress needs to update the preclearance formula set forth in Section 4.
Roberts was joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented.
The Voting Rights Act was renewed overwhelmingly in 2006 by a Republican-led Congress and signed into law by a Republican president, George W. Bush. Roberts’ opinion finds this update meaningless. He accepts the breathtakingly activist view Scalia expressed during oral arguments: “Whenever a society adopts racial entitlements,” Scalia said, “it is very difficult to get out of them through the normal political processes.”
So the court must force Congress out of its “normal political processes” to confront what it’s unwilling to reconsider, in the view of Roberts and his conservative allies. Talk about an usurpation of legislative authority.
The ruling means Texas can now enforce the voter ID law passed by the Legislature in 2011. Maps defining districts for the Texas House, Texas Senate and U.S. House can be drawn without seeking federal approval (though Tuesday’s ruling does not prevent court challenges). The commission drawing districts for Austin’s new 10-member City Council can do so without worrying how the federal government will judge them.
No one will argue with Roberts’ assessment that the nation is in a better place than it was in 1965 when Congress passed the Voting Rights Act and President Lyndon Johnson signed it into law. There are no Jim Crow laws blocking black voters or threatening their lives. Those blatantly discriminatory days are history but voting discrimination continues, and in subtle ways that are hard to fight.
To consider the Voting Rights Act’s continued relevance, one needs only to look at Texas. Last summer a three-judge federal panel, made up of two Republican appointees and one Democratic appointee, threw out congressional maps passed in 2011 by the Republican-led Legislature. In reaching their decision to toss out the state’s maps, the judges said, they had been confronted with “more evidence of discriminatory intent than we have space, or need, to address” in their ruling.
Texas added 4.3 million people between the 2000 and 2010 censuses and received four additional congressional seats as a result. Though Hispanics accounted for 65 percent of the population increase, African-Americans 13.4 percent and Asian-Americans 10.1 percent, the number of so-called minority-opportunity districts dropped from 11 to 10. Under the Legislature’s 2011 maps, white voters, the minority in five of the state’s largest counties, controlled 12 of 19 congressional districts.
There is a multitude of ways to determine where voting discrimination exists and where Section 5’s preclearance requirements should continue to apply. Whatever the formula used, most show that the parts of the nation currently covered by Section 5 should remain covered.
Here’s one example: In May, Christopher Elmendorf, a law professor at the University of California-Davis, and Douglas Spencer, a law professor of the University of Connecticut, published a paper in which they applied a methodological technique to public opinion data to try to define a “geography of discrimination.” Their analysis led them to conclude that the current “coverage formula for Section 5 is remarkably well tailored to the geography of anti-black prejudice. If the Supreme Court invalidates the coverage formula in Shelby County v. Holder, Congress could re-enact a substantially similar formula on the basis of our findings.”
The improvements in voting rights that Roberts sees may prove to be mere vapor without federal oversight. Power determines whose electoral voice matters. It shouldn’t take long to see how far some of those in power are willing to go to suppress political voices left vulnerable by Tuesday’s ruling.