OK, Congress, Time to Get Your (Voting Rights) Act Together

Congress now must go back to the drawing board on the Voting Rights Act. Can it?

By Brentin Mock Jun 25, 2013

This morning the U.S. Supreme Court ruled 5-4 that the Section Four coverage formula of the Voting Rights Act is unconstitutional because the logic used the last time it was updated–the early 1970s–doesn’t apply to present-day challenges involving voting discrimination. Section Four creates the critieria for which jurisdictions can be covered by Section Five. 

This is definitely a devastating blow to the Voting Rights Act, but it could have been way worse. The Supreme Court could have ruled that Section Five itself was unconstitutional, but it didn’t do that (though, Justice Clarence Thomas said in his written opinion he wanted Section Five ruled unconstitutional). It only ruled that the coverage formula that makes Section Five possible needs to be re-jiggered by Congress. Had Section Five been ruled unconstitutional, that would mean no state or jurisdiction would ever have to be subjected to federal review of new election laws for possible discrimination. 

Now it’s on to Congress. It is Congress that created the formula for Section Five and only Congress can fix it. In their last re-authorization of the Voting Rights Act in 2006, they did not make changes to the formula, mainly because their evidence–15,000 pages worth of evidence–illustrated that voting rights problems still occurred in the areas identified in the prevailing coverage formula.

What happened this morning is that the Supreme Court positioned itself as the evidence-gathering body to determine the Voting Rights Act’s validity, and substituted its own opinion for that of Congress–even though Congress overwhelmingly re-authorized the Act in 2006; not one vote was placed against it in the Senate.

The Section Four coverage formula that is in dispute judged jurisdictions by their record of discrimination against voters of color and against those who speak English as their second language. It mostly led to coverage of areas in the old Confederate South, including Texas, Virginia, South Carolina, Georgia, Alabama, Mississippi, Louisiana and parts of Florida. But it also covered areas in New York, Alaska, New Hampshire and California. Those areas have been required to submit new election law changes to the Department of Justice or the U.S. District Court in D.C. for "preclearance"–or, a review to determine if any racial discrimination could result from the change. 

Wrote Chief Justice John Roberts in his opinion:

In 1966, the coverage formula was "rational in both practice and theory." It looked to cause (discriminatory tests) and effect (low voter registration and turnout), and tailored the remedy (preclearance) to those jurisdictions exhibiting both. By 2009, however, the "coverage formula raise[d] serious constitutional questions.’ Coverage today
is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned for over 40 years. And voter registration and turnout numbers in covered States have risen dramatically. In 1965, the States could be divided into those with a recent history of voting tests and low voter registration and turnout and those without those characteristics. 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.

Congress will now have to go back into the act and find a new way to identify areas that deserve federal oversight. This will be a tough sell politically. It’s hard to imagine anything passing through Congress in this day and age. It’s even harder to fathom that a senator or representative from a previously uncovered state would self-indict his or her state–basically, confess that the state has voting problems that the federal government should address–and act on that by creating a law to have itself policed.

Some of the uncovered states that had major voting problems in 2008 and 2012: Ohio, Wisconsin and Pennsylvania. Only five counties in Florida are covered, but there were problems all over the state. What’s needed is a universal right to vote, constitutionally protected, as civil rights advocates have argued. But for that also, Congress will have to get its act together. 

For more explanation on Section 4 and Section Five of the Voting Rights Act, read our comprehensive past coverage:

"North Carolina: A Case for the Voting Rights Act’s Modern Relevance" — February 27, 2013

"What is Alabama’s Problem With the Voting Rights Act?" — February 26, 2013

"Voting Rights Icon Lawrence Guyot’s Death Animates Fight Over Future" — December 6, 2012

"Why the Voting Rights Act Likely Won’t Survive Supreme Court Review" — November 14, 2012

"Today’s the Voting Rights Act’s Birthday. What’s It to You?" — August 6, 2012; Julianne Hing

"Texas vs. Voting Rights Act, 1944 to 2012" [Infographic] — July 12, 2012; Hatty Lee

"Texas Wants to Say Adios to the Voting Rights Act’s Authority" — July 10, 2012; Aura Bogado

"The Growing Debate Over the Voting Rights Act" — May 24, 2012