This article first appeared in the St. Louis Beacon: The conservative majority on the U.S. Supreme Court on Tuesday struck down the most potent part of the 1965 Voting Rights Act, one of the most successful laws enacted in American history.
In a 5-4 decision, Chief Justice John G. Roberts said the law was based on "decades-old data and eradicated practices” that no longer justify treating Southern states differently from others. He noted that African-American voter turnout rate exceeded white turnout rate in five of six Southern states in the last election.
The court declared Section 4 of the 1965 law unconstitutional. That is the part of the law that determined which states are required under Section 5 to obtain clearance from federal authorities for changes in voting procedures. It targeted nine states, mostly in the South. The court did not strike down Section 5 itself, but left it a hollow shell.
Congress could theoretically update Section 4 and reinvigorate Section 5 but no one expects that to happen.
Clearance from the federal authorities was the strongest part of the voting rights law because it required cities, counties and states to justify their changes in voting laws before they took effect. Section 2 of the law, which remains standing, permits suits challenging individual voting laws, but there the burden of proof is on the voter claiming discrimination.
The chief justice said that only extraordinary evidence – such as the voter discrimination that existed in 1965 – could justify treating some states differently from others because of the “fundamental principle of equal sovereignty” – in other words that each state is treated equally.
Justice Ruth Bader Ginsburg issued a strong dissent for the four Democratic appointees on the court. She said that Congress had plenty of evidence in 2006 to re-enact the law, which she said “became one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our nation’s history. “
Civil rights leaders and long-time supporters of the law in Congress, such as U.S. Sen. Dick Durbin, D-Ill., criticized the court in strong language. Durbin said in a statement that he and his subcommittee on the Constitution had held hearings in recent years showing a new generation of voter discrimination. He added:
“For almost 50 years, the Voting Rights Act has protected minority populations from discrimination at the ballot box, whether in the form of poll taxes, literacy tests or voter identification laws and discriminatory redistricting. We need look no further than the last election cycle to understand the ongoing importance of the Voting Rights Act.”
John S. Jackson, a political science professor at the Paul Simon Public Policy Institute at Southern Illinois University, said that the Justice Department’s power to approve voting changes in the South had been “incredibly important” in the last presidential election when some Southern states attempted to limit voting hours and other regulations affecting voter access.
A case of judicial activism?
Two constitutional law professors at Washington University, Gregory P. Magarian and Bruce La Pierre, strongly criticized the court’s decision. La Pierre said the opinion was a piece of judicial activism and Magarian said it was based on the “fabricated” principle of equal sovereignty.
La Pierre wrote in an email: “The court’s activism – striking down congressional legislation – is particularly troubling where Congress has acted, as here, to make the political process more inclusive, more representative.
“The court is at its best when it promotes majority rule and fair, inclusive political decision making. Congress is at its best when it promotes majority rule and fair, inclusive political decision making. Deference to Congress here was appropriate.”
La Pierre noted that the court has said in the past that judicial intervention is most appropriate when a law restricts political process. “Conversely,” he added, “judicial intervention is least appropriate in cases where Congress has acted to make the political process more democratic” as it has with the Voting Rights Act.
Magarian wrote in an email that “the decision is another example of Roberts’ talent for pretending to do a little while doing a lot.” He added:
“The court’s decision reflects a victory for two big ideas: state power, at the expense of racial justice; and judicial power, at the expense of democracy.
"First, state power…Most of the opinion’s analysis depends on the idea that the Section 4 coverage formula violated the principle of 'equal state sovereignty.' Nowhere in the Constitution does that phrase, or any synonymous phrase, appear. It is a constitutional mandate of the court’s own pure fabrication. The idea of ‘equal state sovereignty,’ however, has impressive historical roots: it was a favorite rhetorical device of slave states before the Civil War.
“Second, judicial power. Ordinarily, I have little use for abstract complaints about 'judicial activism.' But in this case, Congress legislated pursuant to a specific grant of power in the 15th Amendment, acting to remedy perhaps the most profound and persistent social problem in our nation’s history, after careful consideration and based on a dark, massive history of voting discrimination. The court should not lightly overrule that sort of congressional judgment. Today’s decision, however, is not just light but reckless. The court essentially substitutes for Congress’ well-considered judgment the opinion of five justices that racial discrimination in voting just doesn’t matter much anymore.”
David Roland, a libertarian and director of the Stiles Center for Liberty in Olympia, Wash., disagreed. The former St. Louisan thinks that the court was right to require more evidence of Congress.
“Time and again the majority pointed out that the circumstances have dramatically changed in the past five decades,” he wrote in an email, “and that it is not rational for Congress to rely on statistics from the 1960s to justify Congress' continued selective oversight of a handful of state and local jurisdictions.”
One irony of Tuesday’s decision – as Ginsburg pointed out in dissent – was that Roberts' opinion threw out the law based on its success in eradicating once rampant discrimination against minority voters.
Roberts wrote that literacy tests had been banned 40 years ago, black voter registration in the South was up to levels for whites, and blacks had succeeded in electing a record number of public officials.
“Our country has changed,” Roberts said, “and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”
But Ginsburg said Roberts had ignored voluminous congressional testimony in 2006 when Congress voted by overwhelming margins to reauthorize the law for 25 years. The vote in the Senate was unanimous.
“In the court’s view, the very success of §5 of the Voting Rights Act demands its dormancy,” wrote Ginsburg. “Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated.
“The question this case presents is who decides whether, as currently operative, Section 5 remains justifiable,” she wrote, “this court, or a Congress charged with the obligation to enforce the post-Civil War amendments ‘by appropriate legislation.’”
Ginsburg’s answer was clear. The 15th Amendment, which guaranteed the right to vote, gave Congress to power to enforce that right.
Ginsburg ticked off a long list of discriminatory voting changes in the South in recent years.
Noting that Shelby County, Ala. had brought the case challenging the law, Ginsburg noted recent “shocking” recorded conversations where members of the state Senate “derisively refer to African Americans as ‘Aborigines’ and talk openly of their aim to quash a particular gambling-related referendum because the referendum, if placed on the ballot, might increase African-American voter turnout.”
Finally, Ginsburg criticized Roberts for the “unprecedented extension of the equal sovereignty principle outside its proper domain — the admission of new states” She warned that such an extension “is capable of much mischief.”