Supreme Court to Congress on Voting Rights Act: “History Did Not End in 1965”
by John G. Malcolm and Elizabeth Slattery Heritage Foundation June 25, 2013
In its Voting Rights Act decision today, the Supreme Court struck down an outdated provision that was no longer necessary—because thankfully, “Our country has changed,” as Chief Justice John Roberts put it.
The decision did not invalidate the entire Voting Rights Act, and it will not promote discrimination. In fact, it is a huge victory for federalism and a sign of the tremendous racial progress that this country has made since the time the Voting Rights Act was passed.
The U.S. Supreme Court invalidated Section 4(b) of the Voting Rights Act. Section 4(b) provides the coverage formula for Section 5, which requires certain jurisdictions (nine states and some counties in six others) to seek preclearance from the Justice Department or a federal court in Washington, D.C., before making changes to voting laws—an extraordinary intrusion into state sovereignty and principles of federalism.
Section 5 turns states’ equal sovereignty on its head, but the Supreme Court upheld the law in the 1960s based on the dire and exceptional conditions then present in the covered jurisdictions where official, systematic, and widespread discrimination in voting existed at that time, but which, fortunately, does not exist today.
The formula for determining which jurisdictions are covered today is based on voter turnout data from the presidential elections in 1964, 1968, and 1972. Congress reauthorized Section 5 and the coverage formula in 2006 for another 25 years without updating the formula. The Court held today that current burdens must be justified by current needs and that the “coverage formula met that test in 1965, but no longer does so.”
Further, the Fifteenth Amendment, which provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged…on account of race, color, or previous condition of servitude,” was “not designed to punish for the past; its purpose is to ensure a better future.”
States such as Mississippi and Georgia now have some of the highest turnout rates among African American voters—exceeding that of white voters. The Court highlighted this, noting that “things have dramatically changed…no doubt…in large part because of the Voting Rights Act.” Nevertheless, the “extraordinary and unprecedented features” of Sections 4(b) and 5 were reauthorized “as if nothing had changed” based on “decades-old data and eradicated practices.” The Court continued:
If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way based on 40-year-old data, when today’s statistics tell an entirely different story.
In 2009, in Northwest Austin Municipal Util. Dist. No. One v. Holder, the Court questioned the continued validity of Section 5 and the coverage formula but declined to issue a sweeping opinion. Had Congress heeded the Court’s advice and addressed the constitutional deficiencies of the coverage formula during the last four years, it would not have to start from scratch to create a new coverage formula.
The Court did not issue a ruling on Section 5 and indicated that Congress may draft another coverage formula based on current conditions. It will be interesting to see what Congress can cook up; based on current data and using the coverage formula that the Court invalidated today, only Hawaii would be covered.
Significantly, this decision does not affect Section 2, which is a permanent, nationwide ban on racial discrimination in voting and can still be used to challenge discriminatory practices if they occur. While discrimination still exists and should be addressed, the widespread, blatant discriminatory governmental practices of the Jim Crow South are a thing of the past, and this is a cause for celebration.
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