Nearly fifty years since its creation, and seven years after it was reauthorized with bipartisan support, the heart of the Voting Rights Act was nullified today by a 5-to-4 Supreme Court vote. After months of deliberation, the Supreme Court ruled today on Shelby County v. Holder and declared unconstitutional Section 4’s coverage formula, which determines which states and counties are required under Section 5 to receive permission from the Justice Department prior to making changes that could affect voting. Though the court did not rule Section 5 unconstitutional, without a coverage formula it will be rendered meaningless.
The decision is “a call to action,” said Steven Shapiro, legal director of the American Civil Liberties Union. “It’s not a call for despair.”
The legal argument against Section 4 claims that it is outdated and that it subjects certain states and counties to unequal treatment by the federal government. “Congress—if it is to divide the states—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions,” wrote Chief Justice John Roberts for the majority. “It cannot rely simply on the past.”
Yet data on the instances of discriminatory voting practices discovered using the coverage formula prove that this problem is still concentrated in many places where it happened in the past. The bipartisan decision by Congress to reauthorize the Voting Rights Act in 2006 was made “with great care and seriousness,” Justice Ruth Bader Ginsburg wrote in her dissent. “The same cannot be said of the Court's opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story.”
In the past 20 years, Section 5 has blocked more than 1,000 discriminatory changes to voting regulations. Just last year, it prevented early voting hours from being cut in Florida and a photo ID measure from being passed in Texas that would have allowed voters to demonstrate their identity with expired out-of-state gun licenses, but not with student IDs. In 2001, when the all-white board of aldermen of Kilmichael, Miss., tried to cancel an election when many African Americans decided to run for office. The preclearance from the Justice Department spotted the discrimination and forced the town to hold the election. As a result, the town’s first black mayor was elected.
Under Section 4, states and counties could petition to be released from the preclearance requirement if they had no discriminatory voting practices over a 10-year period. More than 200 districts have already done so.
Georgia congressman John Lewis, who helped lead the “Bloody Sunday” march to end discriminatory voting practices in 1965, told ABC News that today’s decision “put a dagger in the heart of the Voting Rights Act of 1965.” The Nation calls today’s ruling “The worst voting rights decision in a century.”
Civil Rights advocates attempted to put pressure on the Supreme Court in the months leading up to the decision and will likely be even more active in the months to come. A rally organized by the Leadership Conference on Civil and Human Rights and more than 50 other organizations was held outside as the Supreme Court heard the case on Feb. 27. It included caravans of Freedom Riders, including civil rights activists who rode buses into the segregated south in 1961. Hoping to remind the justices of the discrimination that the Voting Rights Act helped overturn, thousands of people joined marches June 14 in cities throughout Alabama, including Birmingham, Selma, Montgomery, and Columbiana, which is in Shelby County.
The decision is “a call to action,” said Steven Shapiro, legal director of the American Civil Liberties Union, addressing the American Constitution Society. “It’s not a call for despair.” The NAACP has already created a petition demanding that Congress create a new formula immediately. “Communities of color, and young, women, elderly, and disabled voters are at risk,” the petition claims. “While this [ruling] is a setback, it is by no means the end of the game.”
No matter what coverage formula the Voting Rights Act uses, Shelby County, Ala., the plaintiff in the case, would undoubtedly be covered. In 2008, the city of Calera in Shelby County used new district lines in an election, even though they had been rejected when they were sent for preclearance. As a result, the city’s only African American councilman wasn’t re-elected. When the Department of Justice forced the city to redo the election, the county—with the urging and financial support of Edward Blum, who had been searching for a plaintiff willing to take on the Voting Rights Act in in court—sued the department for requiring preclearance.
The NAACP is actively creating a new branch in Shelby County to monitor voting rights infringements that might otherwise go unnoticed, now that the preclearance requirement has been overturned.