Supreme Court Voting Rights Act: Court Tells Do-Nothing Congress, "Your Move!"

Today the Supreme Court’s ruling in Shelby County v. Holder left it to Congress to modernize a section of the Voting Rights Act of 1965, which the court ruled to have violated certain states’ constitutional right to sovereignty. To anyone following Congress over the last four years or so, it's apparent that this ruling will have a long-lasting affect, with the chance of legislation being passed in the near future to address modern forms of discrimination being slim to none.

The Voting Rights Act of 1965 was enacted during the height of the Civil Rights movement, and was a legislative attempt to finally address the near-century of egregious violations of constitutional mandates surrounding voting. The Fifteenth Amendment forbade denying or abridging an individual’s right to vote because of their race, color, or previous condition of servitude, and gave Congress the power to enact appropriate legislation to enforce the article. The word “appropriate” proved to be the deciding factor in this case. Section 5 of The Voting Rights Act required states and jurisdictions covered under a formula laid out in Section 4 of the act to seek federal approval before making any voting changes, a clear violation of state sovereignty. Previous courts allowed this unusual deviation from the Constitution to remain in place because of the severity of these states' violations of other constitutional rights (i.e. the right to vote and the right to equal protection). The court now believes this Section 4 provision is now outdated because of the eradication of unconstitutional voting barriers and comparable registration percentages between whites and blacks in the covered jurisdictions. By striking down Section 4 of the act, the Supreme Court now places the burden of ensuring the maintenance of fair elections on Congress, a body that recently has probably been more adept at naming post offices than much of anything else.

Section 4 of the Voting Rights Act essentially lays out a formula for how certain states and jurisdictions are to be included in a list of areas subject to Section 5 restrictions. The current included jurisdictions are primarily in the South, a section of the country that tended to use the most blatant forms of voter discrimination. During oral arguments for the case, Chief Justice Roberts explicitly asked Solicitor General Donald Verrilli if he believes Southern inhabitants are more racist than those up North. Verrilli was arguing that use of Section 5 is still warranted because the 81% of successful suits under Section 2 of the Voting Rights Act, which prohibits voter discrimination, were generated in the currently targeted jurisdictions. General Verrilli did not offer his opinion on the diverging levels of racism between the North and South, however, a recent paper by University of California and University of Connecticut law professors offers empirical evidence to suggest there is a difference in racial sentiment between six of the states covered by Section 4’s formula and the rest of the country. Although diverging racial attitudes are not at the heart of the issue for this case, it doesn’t take much time to find instances of institutional racism still being practiced in the South.

Chief Justice Roberts noted Congress’ use of the term “second-generation barriers” to voting to support the court’s ruling that the formula authorized under Section 4 was outdated. “First generation barriers” such as poll taxes and literacy tests were such egregious violations of constitutional rights that strong temporary action was allowed to remain law despite challenges to its constitutionality. In his majority opinion, Chief Justice Roberts essentially states that current barriers to voting are less egregious and therefore do not warrant continued denial of state sovereignty, because these measures can now only dilute votes instead of denying them altogether. There was some debate among the court as to whether dilution of votes violates the Fifteenth Amendment’s prohibition of abridging votes, but clearly the court's majority decided this circumstance did not warrant such strong federal action. Justice Scalia voiced his opinion during oral arguments that the declining partisanship in Congress around voting for reauthorization of the Voting Rights Act highlights the law's ascension into a "racial entitlement," despite Congress having developed a 15,000 page legislative record between 1986-2006 on the subject and determining the problem still warranted continuation of the act.

It is true, so-called “second generation barriers” to voting are now becoming a national issue. If Congress had voted to require all states to abide by Section 5 restrictions, today’s ruling might not have occurred. The court’s ruling is not a declaration that voting discrimination has ended, rather it is a call for Congress to legislatively address more modern forms of voter discrimination. This case is another example of how the subtleties of interpretation of the Constitution play out in society. The striking down of Section 4 of the Voting Rights Act presents an excellent opportunity for Congress to uniformly address voting-rights abuses at a national level, but I wouldn’t hold my breath.