So in a much-dreaded opinion from the U.S. Supreme Court written by the Chief Justice, a 5-4 majority struck down Section 4 of the Voting Rights Act of 1965, which supplies the “coverage formula” for application of Section 5, the “preclearance” system mainly at issue in this case (Shelby County v. Holder). Justice Thomas concurred with the decision, but in a separate opinion said he’d have killed Section 5 itself. Justice Ginsburg’s dissent was joined by Breyer, Sotomayor and Kagan, unsurprisingly.
We’ll have more later about this decision and its implications, but basically the Court’s majority took the easiest route for killing Section 5, the powerful voting rights instrument that requires mostly- (but not exclusively) southern jurisdictions making changes in laws or procedures that might “dilute” minority voting influence to submit them in advance for “preclearance” by the Civil Rights Division of the Justice Department. Section 4 sets out the formula for which jurisdictions are under Section 5, and which are not. By declaring Section 4 unconstitutional because its measurements of the kind of past voting discrimination needed to trigger coverage under Section 5 are allegedly “outmoded,” the Court is essentially suspending Section 5 itself until such time as Congress rewrites Section 4. Good luck with that.
Now some optimists will note that Congress passed the 2006 extension of the Voting Rights Act by an overwhelming bipartisan vote (it was actually unanimous in the Senate), as requested by a Republican President. So in theory there’s no reason to despair that an effort to “fix” or “update” Section 4 can’t get significant Republican support.
But considering how much the GOP has changed since 2006 (when behind the scenes, there was actually considerable dissension among Republicans before the Bush administration decided to support a simple extension), and just as importantly, how complex and inherently divisive a rewrite of Section 4—which adjudges jurisdictions as “in” or “out”—might be, a congressional “fix” seems unlikely. Moreover, though I haven’t had the chance to peruse the opinion just yet, I’d hazard a guess that it leaves considerable mystery about the kind of “fix” that would survive future scrutiny by the Court.
If all that is correct, Section 4 is dead, making Section 5 a dead letter. And that means voting rights enforcement falls heavily back on Section 2, whereby anyone (including the Justice Department) can sue to challenge voting rights violations—but only after the fact, and after demonstration of actual damage to minority voting interests. That’s a vastly different threshold and standard for vindication of voting rights. And the timing—when one of our two major parties has decided that its increasingly white voter base can be best protected with least protection of (or most aggressive vitiation of) minority voting rights—could not be much worse.
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