On Tuesday, President Obama expressed “disappointment” in the Supreme Court's 5-4 ruling in Shelby County v. Holder, which all but eviscerated Section 5 of the Voting Rights Act, and called upon Congress “to pass legislation to ensure every American has equal access to the polls.”
Other critics of the ruling, however, were not so temperate in their characterization of what could prove to be a game changer for ongoing efforts to counter voter suppression.
“Within many of our lifetimes, brave men and women literally died for the right to vote, in the face of terror and intimidation from the Ku Klux Klan and others. Astonishingly, the court today effectively sided with the KKK, making it far easier to deny the vote to people of color, the poor, and anyone else who officials don’t want voting,” said Michelle Romero from the Greenlining Institute.
“Make no mistake: Though the court technically didn’t throw out the pre-approval provision, its decision today has the same effect, unless Congress acts,” she contended. “This is a deeply shameful decision, every bit as shameful as the Dred Scott case or Plessy v. Ferguson.”
The “pre-approval provision” of Section 5 of the Voting Rights Act requires nine selected states and other jurisdictions located mostly in the South (and chosen due to their historic patterns of discrimination against ethnic minority voters) to submit any changes to state voting laws and procedures to either the Department of Justice (DOJ) or the U.S. District Court for approval, before they can go into effect.
Though the Supreme Court’s decision left Section 5 intact, Chief Justice John Roberts barred the use of Section 4, the data-gathering formula that provides the statistical underpinning for DOJ or the District Court to make their determinations.
In essence, because there have been instances of minority voters successfully electing candidates of their choice since the passage of the Voting Rights Act, Roberts argued that the past is no longer prologue to America’s current realities. He wrote: “There is no denying… that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.”
In a statement released after the decision, Judith Browne Dianis, co-director of the Advancement Project, sharply disagreed: “Ample evidence shows that [the] prior Section 4 formula – which enabled Section 5 to block more than 1,500 discriminatory voting laws from going into effect since its inception, including five last year – is still a critical necessity, and that the formula for those covered states was clearly appropriate.”
“The Supreme Court today struck a major blow to our democracy. By stripping Section 5 of its powers, jurisdictions no longer have to justify any change in their voting laws,” said Tram Nguyen, associate director at Virginia New Majority.
“Discrimination at the ballot box isn’t a thing of the past. Many states, including Virginia, have adopted Voter ID laws aimed at reducing turnout among minorities and low-income voters.”
Similarly, Michael Waldman, president of The Brennan Center for Justice, rebuked the Court’s assessment of today’s voting climate as inaccurate.
“The Supreme Court’s decision is at odds with recent history. The Voting Rights Act was vital in 2012, not just 1965. For nearly five decades, it has been the nation’s most effective tool to eradicate racial discrimination in voting. And it is still critical today.”
But Waldman also suggested that the Court’s decision leaves room for the Voting Rights Act to be restored.
“There is a path forward. Section 5 stands. Congress now has the duty to upgrade this key protection and ensure our elections remain free, fair, and accessible for all Americans.”
The Court’s ruling speaks to a concern for state sovereignty, in that certain jurisdictions are being held to a different standard than those not subject to the Section 4 formula. There is now a question as to whether or not Congress will attempt to craft a new formula for determining if and how Section 5 jurisdictions are suppressing voters.
A new formula could conceivably even bring a greater number of states and jurisdictions under Section 5 coverage, given the deluge of restrictive state voting laws that have been enacted in recent years.
According to data compiled by The Advancement Project: In 2013, voter ID restrictions were introduced in 24 states; proof of citizenship laws in eight; restrictions to early voting in nine; restricting same day voter registration in six; restrictions on voting registration drives in eight; list maintenance and voter purges in six; restrictions on felon rights restoration in two; and penalties for student registration in two. These come on the heels of a number of other restrictive state voting laws that were passed before the 2012 presidential election.
Most observers, however, are not convinced that the current Congress, already deeply divided along party lines on a host of issues, has the political will to design a new formula that will appease both parties. The Voting Rights Act received an extension of 25 years from Congress as recently as 2006.
Recent polling shows an America nearly equally split on whether the Voting Rights Act should remain in effect. Given that, authorizing a new formula would be a calculated risk for incumbents whose constituents may, ironically, exercise their unencumbered access to the polls to remove those in Congress who dare to challenge the Court’s decision on Section 4.
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