Today, the Supreme Court gutted the 1965 Voting Rights Act and made a clear declaration that the court is no longer interested in what it views as racial issues of the past. The Supreme Court’s decision in Shelby County v. Holder was a challenge to Sections 4 and 5 of the Voting Rights Act. Section 5 required the rules, policies, and procedures that related to voting in states with a history of discrimination to be reviewed by the Department of Justice prior to implementation. Effectively, this meant that when Shelby County, Alabama attempted to implement a discriminatory redistricting plan, they had to get it cleared by the Department of Justice first. This section of the Voting Rights Act also applies to statewide redistricting plans in states like Texas and Georgia. Without this important section of the Voting Rights Act, discriminatory voting practices can still be challenged, but not until after there has been some actual injury caused by the practice. That is to say, a discriminatory voting practice can only be challenged after Election Day, when it can be demonstrated, most likely through actual voter statistics, that the law indeed had a discriminatory effect on the election outcome. The problem with this approach is obvious: The election is already over by then and it is unlikely that a new election would be ordered.
Section 5 of the Voting Rights Act technically remains intact after today's ruling. However, Section 4 of the law was declared unconstitutional — the portion of the law that determines the formula for which jurisdictions fall under Section 5 in the first place. This has effectively made Section 5 impossible to use, without actually striking down the law. The court declared that the formula currently in Section 4 was outdated and requires updating by Congress.
The passage of the Voting Rights Act in 1965, under the leadership of President Lyndon Johnson, is one of the most lasting hallmarks of the Civil Rights Era. The Supreme Court today has signaled a new era and ignored the will of the people’s elected representatives. Congress voted to re-authorize the Voting Rights Act, a District Court found the challenge to Section 5 invalid, and the D.C. Circuit found that Section 5 of the Voting Rights Act was a valid exercise of legislative authority, but today five justices on the Supreme Court decided otherwise, and just like that, history has been rewritten.
So what now? The Supreme Court is basically displeased with the current states that are targeted and has instructed Congress to create a new list of states and municipalities that will be subject to the Department of Justice's pre-clearance review. Effectively, the Court has kicked it back to Congress. Advocates for a robust Voting Rights Act, must now focus their energy on developing a legislative strategy that gets the “do-nothing Congress” to do something.
By the end of this week, we will know if the Supreme Court is doing what I expected it would this term — that is, trading African-American rights for gay rights. So far, it appears that will be the case. For now, the Voting Rights Act has effectively been gutted and the likelihood that Congress will act on it anytime soon is unlikely. The minority right to vote has taken a deadly blow today and the proliferation of unjust voting laws will likely begin immediately.