In a long-awaited ruling, the Supreme Court struck down Section 4 of the Voting Rights Act by a vote of 5-4. The ruling handicaps an integral piece of the civil rights era law (Section 5) that required states and counties with a history of institutional racism to get pre-clearance from the federal government before changing voting laws, rules, and requirements. In his opinion for the Court, Chief Justice John Roberts put the VRA on hold pending an update by Congress.
Some initial thoughts and takeaways are below:
1) This is somewhat of an expected outcome. Conservatives like Chief Justice Roberts have had it out for the Voting Rights Act for decades. Many expected this 5-4 split to go even further and directly eliminate Section 5 (as Justice Thomas proposed doing in his concurrence). In going around it by gutting Section 4, the Chief Justice somewhat punted full elimination by giving Congress the responsibility to fix it.
2) The inability to get five votes to outright kill Section 5 suggests a bit of cowardice from the right side of the Court. They didn’t want to be seen as destroying a historically popular and effective law, so they neutered it and put the burden on Congress to figure out how to fix it. This means that it’s technically easier to get the VRA back up and running, assuming the Congress can come to some sort of agreement. Then again, these days, that’s an awfully big assumption.
3) Part of the reason for going after Section 4 instead of Section 5 may be the continued tension over the data used to justify the preclearance requirements of the Voting Rights Act. On the one hand, Justice Ginsburg likened eliminating the pre clearance requirement to “throwing away your umbrella in a rainstorm because you are not getting wet.”
On the other hand, Chief Justice Roberts argued that you can’t use “supposed deterrence” as a justification for the law, or else the law is by definition an indefinite one that allows no way for areas with a history of institutional racism to evolve beyond that in the eyes of the law. As Roberts put it, historically racist states must be given the chance to prove that “things have changed in the South.” By putting the onus on Congress to bring out the numbers, the five Justice majority said they’d leave Section 5 alone if Congress could show that the Jim Crow-esque laws that inspired the original law still existed.
4) So what is the practical impact of this ruling? Does this mean the return of poll taxes? Probably not, although they are more theoretically possible now. The 15 states that had to seek Federal preclearance before enacting changes in voting rules no longer have to seek permission before enacting potentially discriminatory election laws. In the past, the Federal government could prevent those laws from being enacted (read more about the kind of work Section 5 did here). Now, these potentially discriminatory laws will be enacted and the challenges will most likely come after the election has occurred. The federal government will still have the right to sue and put some laws on hold, but the efficacy of that approach will depend largely on judges siding with the federal government. The laws that are struck down as unconstitutionally discriminatory after the election will have already done their damage, potentially entrenching a government that will further disenfranchise minorities.
5) At the end of the day, the path forward, as with many other things, unfortunately lies with Congress. Southern Democrats and voting rights activists should have seen this coming and have legislation ready to be introduced by the end of the week. The simple fact is that discrimination does still absolutely exist, whether it is enforced through discriminatory election practices or post-election gerrymandering. For example, no black candidate has ever won state-wide office in North Carolina, Alabama, or Mississippi despite making up 22%, 26.5%, and 37.3% of the population of those states, respectively (read more here). Following a contentious election in which most controversies centered on racially discriminatory voting laws, it will be up to activists, voting rights groups, and all Americans to push through an updated look at racially discriminatory voting laws and how the Voting Rights Act will apply to them moving forward.