As the 50th anniversary of many of the key moments in the civil rights movement approaches, a divided Supreme Court struck down a key provision in the Voting Rights Act of 1965: Section 4, the formula that determines which states and counties with a history of racial discrimination must submit to a process known as “preclearance.”
The formula was based on states with records of abuse in the 1960s and 1970s, and excused states with 10 years of good behavior. Jurisdictions under preclearance must gain approval from the U.S. Department of Justice (DOJ) for any changes to election laws or procedures. Absent a new formula from Congress, the court’s ruling essentially lifts the preclearance burden from the covered states, which were largely Southern.
Chief Justice John Roberts, writing for a majority of the court that included Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, said that times have changed since the act was passed, and the formula for the most-discriminatory areas of the country is outdated. (Download a PDF of the opinion.)
“In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics,” the court wrote. “Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”
The dissenters wrote, “In the Court’s view, the very success of Section 5 of the Voting Rights Act demands its dormancy.”
Though the Supreme Court’s decision did not strike Section 5, the preclearance section, striking Section 4 makes the DOJ’s job enforcing Section 5 likely difficult, because it does not have a clear method for designating states that fall under preclearance. The dissent noted that striking Section 4 “immobilized” Section 5.
Without Sections 4 and 5, the Justice Department can still prosecute discriminatory election practices under Section 2 of the act, but the burden of proof shifts from the states to the DOJ, which now must play whack-a-mole, essentially, when before the states brought moles one-by-one to the DOJ for whacking.
The Supreme Court had hinted in a previous challenge to the Voting Rights Act that Congress should adjust the formula to the modern era, saying the act “imposes current burdens and must be justified by current needs.” But Congress did not substantially change the formula when it reauthorized the act in the 2006 for 25 years.
Shelby County in Alabama challenged the reauthorization’s preclearance formula, and lost at both the district and circuit court level. Earlier this spring in a trip to Shelby County, where the case originated, I called up the Justice Department’s prosecutorial arm there. The DOJ’s district attorney office for Northern Alabama, which oversees Shelby County, among others, said it had not discovered or prosecuted civil rights abuses against African-Americans in years. It had also been years since the office had investigated cases of voter suppression of African-Americans, according to spokesperson Peggy Sanford. The last voter fraud case the office handled was in the 1990s and involved a black community committing voter fraud.
That’s one data point. Both the majority and the dissenters offered up facts and figures to support their position on whether the South has indeed changed. Section 2 cases are still concentrated in the South, but the South also has vastly improved voter participation numbers and the number of African-Americans in office.
“Alabama still grapples with race-relations issues, but they are the same kind of issues every state currently is endeavoring to solve,” the state wrote in its brief to the court.
“[T]he culture of white supremacy does not die so easily,” wrote a coalition of African-American groups in their own brief to the Supreme Court on the case.
Now it’s up to Congress to jump into that debate.