Congress adopted the Voting Rights Act, and President Lyndon Johnson signed it into law, in 1965. It did much to put an end to persistent measures in the South to prevent African-Americans from exercising the right to vote. The nation has been rightly proud of this landmark legislation ever since.
On Tuesday, the U.S. Supreme Court, in a 5-4 decision along ideological lines, struck down the coverage formula in Section 5 of the VRA, which determines which jurisdictions have a history of discrimination that requires federal "preclearance" of changes in their voting laws or procedures.
States this applies to include Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, Texas, South Carolina, and Virginia. Also included are parts of Florida, North Carolina and other states. The current formula for determining which jurisdictions require preclearance was developed in the 1960s and 1970s because of demonstrated patterns of discrimination against black voters.
As Chief Justice John Roberts pointed out in his written decision for the majority, in 1965 black voter registration was at 6.4 percent in Mississippi and the percentage gap between black and white voter registration was more than 60 percentage points. In 2004, the voter registration rate of blacks in that state had risen to 76 percent, higher than the white rate. Roberts also wrote that in the 2012 election "African-American voter turnout exceeded white voter turnout in five of the six states originally covered by Section 5."
The Chief Justice pointed to the apparent success of the law and said a formula to determine discrimination from decades ago was no longer adequate to the present. He invited Congress to reformulate its coverage formula.
In 2006, Congress held extensive hearings on voter discrimination and then by overwhelming majorities in each chamber reauthorized the VRA, including the preclearance requirement, for another 25 years. Then-President George W. Bush praised the law in glowing terms when signing it.
In 2009, the Supreme Court upheld a challenge to the constitutional authority of Congress to reauthorize Section 5.
In a fiery dissent to Tuesday’s decision, Justice Ruth Bader Ginsburg wrote that Congress reauthorized Section 5 of the law in 2006 for two reasons: "First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding." Such assessments were well within the power of Congress to make and the court should have approved of them, she wrote. She noted that between 1982 and 2006, the Justice Department blocked more than "700 voting changes based on a determination that the changes were discriminatory."
Vt. Sen. Patrick Leahy, a Democrat, reacting to the decision, noted that before reauthorizing the VRA in 2006, Congress undertook a "a thorough and bipartisan process in which (it) overwhelmingly determined that the law was still vital to protecting minority voting rights and that the coverage formula determining the jurisdictions to be covered was still applicable."
In fact, "several lower court decisions in recent years have found violations of the Voting Rights Act and evidence of intentional discrimination in covered jurisdictions," Sen. Leahy said. "Despite this sound record, and the weight of history, a narrow majority has decided today to substitute its own judgment over the exhaustive legislative findings of Congress."
As Chairman of the Senate Judiciary Committee, Sen. Leahy said he intends "to take immediate action to ensure that we will have a strong and reconstituted Voting Rights Act that protects against racial discrimination in voting."
We support Sen. Leahy’s intention, but must note that in today’s gridlocked Congress, agreement on which states and communities have a pattern of voter discrimination seems well-neigh impossible. Today’s Congressional Republicans are significantly further to the right than even the conservative Republicans who voted overwhelmingly in 2006 to reauthorize the VRA.
The justices in the Supreme Court majority must have known this. We wonder if completely overturning the VRA is on their agenda for a future term. Meanwhile, with federal preclearance power gone, Texas is now ready to institute a controversial photo ID law the Justice Department had blocked, saying it discriminated against minority and low-income voters.
The only bright spot is demographic. The American South is rapidly becoming much more mixed-race, multi-ethnic place than it was in 1965, as noted in an article Wednesday in The New York Times. The article quotes Congressman David E. Price, Democrat, of North Carolina, who is also a political scientist, "All the voter suppression measures in the world aren’t going to be enough to eventually stem this rising tide."
~ Mark E. Rondeau