The Supreme Court's Devastating Decision on the Voting Rights Act
California Lawyer

The Supreme Court's Devastating Decision on the Voting Rights Act

The effects of the high court's decision are immediate and – without congressional intervention – will be long-term and monumental.

July 2013

July 1, 2013 -- Of the multiple high-profile Supreme Court decisions issued last week, the Shelby County case is surely the one with the most devastating long-term societal consequences. Although the affirmative action, adoption, and marriage equality rulings are broadly significant, Shelby County will go down in history as the case in which the Roberts Court put the Voting Rights Act on the chopping block and eviscerated it.

By invalidating Section 4, the Roberts majority stripped the Act of a core provision: the "coverage formula" applied to determine which voting jurisdictions were compelled under Section 5 to obtain advance approval ("preclearance") from the Justice Department before changing their election practices. Without Section 4, the preclearance requirement of Section 5 is presently all but useless. Thus, within 24 hours of the Court's decision, election officials in formerly "covered" states including Texas, Mississippi, Florida, and Georgia announced plans to institute changes such as voter ID requirements and the elimination of early voting.

Research shows that voter ID requirements and limited polling place access disproportionately affect racial minorities, disabled individuals, elders, and poor people. Before the Shelby County decision, these plans would have required review and approval by the Justice Department in light of the jurisdictions' records of racial discrimination in voting. Thus, the effects of the decision are immediate and -- without congressional intervention -- will be long-term and monumental. As an example of the increasingly dominant Roberts Court paradigm of thinking about race, the majority opinion is equally damaging. In the 2007 Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice John Roberts penned a now-famous sentence: "The way to stop discrimination based on race is to stop discriminating on the basis of race." This thought, however succinct and superficially catchy, reveals an ahistorical and distorted view of the role of the post-Civil War Amendments in eradicating racism. As Justice Ruth Bader Ginsburg's dissent notes, the central question before the Court in Shelby was the power of Congress under the Fifteenth Amendment to enact (and reauthorize) the Voting Rights Act.

Chief Justice Roberts' preference -- shared most vociferously by Justice Antonin Scalia -- was to supplant his view for that of Congress in the decision to reauthorize Section 4 of the Act in 2006. In other cases, the Chief Justice and Justice Scalia might regard such an approach as judicial overreaching and usurpation of constitutional authority. It is not only surprising but tragic to see that their chosen occasion for overturning a Congressional provision will result in the diminution of rights that the Voting Rights Act existed so long to protect.

Margaret M. Russell is a professor at Santa Clara University School of Law.

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