The Supreme Court of the United States ("SCOTUS") has been active this week. It ruled on a case dealing with affirmative action and its applicability in higher education. It also issued an opinion regarding voting rights, and by week's end, it will issue an opinion regarding the Defense of Marriage Act ("DOMA"). The issues discussed in these cases are intriguing and certainly worth my time to learn about. That said, I usually do not have enough time to read every decision the Court decides. However, today's decision is very important. No, I'll go a step further and say that it is a landmark decision. The implications of the ruling has the potential to impact millions of people. Because of its importance, I read Shelby County v. Holder, in its entirety (over 70 pages) after work today.
What is the Voting Rights Act of 1965?
So, you may be wondering what the big deal is. Well, I'll start with a brief history of the Voting Rights Act of 1965 ("VRA"). The gist of the Act was to help alleviate and potentially eradicate voting discrimination. Certain States and select counties ("covered jurisdictions") were identified as areas where voting discrimination was pervasive. These jurisdictions were geographically located in the Jim Crow south. VRA included preclearance safeguards that applied to the covered jurisdictions. If a covered jurisdiction wanted to change a voting law, it had to be subjected to federal scrutiny to ensure that the law would not be racially discriminatory. Conversely, non-covered jurisdictions could change voting laws without the federal government's permission. My brief summary of VRA is a vast oversimplification of its reach and depth, but hopefully it provides some context for its importance.
How Did SCOTUS Rule?
In case you are wondering, SCOTUS ruled in favor of invalidating section 4(b) of VRA. This section previously relied on voting data showing rank discrimination in the covered jurisdictions. Section 4(b) gave the federal government the formula for determining what constituted a covered jurisdiction. My understanding of the opinion is that SCOTUS believes that voting discrimination has improved to the point that Section 4(b) is no longer necessary in protecting minority voting rights.
Arguments for Invalidating Section 4(b)
Chief Justice John Roberts authored the majority opinion. He made a number of arguments as to why Section 4(b) should be invalidated. One of the major arguments was that nearly 50 years after VRA was first enacted, things have changed drastically. The Court relied on statistics that show that the gap between White and Black voters in the covered jurisdictions has decreased tremendously. It also relied on evidence that African-Americans have seen a 1000% increase in their members elected to governmental offices since 1965 in the six States originally covered by VRA.
The majority opinion acknowledged that the improvement in voting equality since 1965 was due in large part to VRA. Ultimately, though, the Court held that Section 4(b) should be invalidated because the formula used to determine the basis for subjecting States and certain counties to preclearance safeguards can no longer be used. The data was simply too old and outdated to be used as the basis for determining preclearance. The Court punted this issue to Congress to determine a more "rational" manner for determining preclearance safeguards.
Arguments for Upholding Section 4(b)
Justice Ginsburg wrote a scathing dissenting opinion. She based her arguments in large part on the history of voting discrimination in the United States, and more specifically in the covered jurisdiction areas (Jim Crow southern states). She argued that VRA has effectively decreased voting discrimination since its passage in 1965. She warned that invalidating Section 4(b) could lead to back sliding and allow voting discrimination to gain momentum. She emphasized that the covered jurisdictions were in areas that have shown the most rampant and flagrant racial discrimination.
She discussed that the original VRA was meant to be temporary, but that each time it faced expiration, it was approved for another definite time period. Most recently, in 2006, VRA was reauthorized. Before Congress did this, it engaged in detailed analysis of the preclearance safeguards in covered jurisdictions. This analysis showed that the preclearance safeguards effectively struck down hundreds of possibly racially discriminatory voting laws.
She also discussed how Section 4(b) of VRA helped deal with the issue of second-generation barriers to equal voting rights. Gone are the days of poll taxes and illiteracy tests. However, tactics such as racial gerrymandering or redrawing of legislative districts in an effort to segregate the races for the purpose of voting are here to stay. Other tactics used by those who would discriminate based on race include multiple voter dilution efforts. VRA as a whole and Section 4(b) made it difficult to pass discriminatory voting laws. With Section 4(b) being invalidated, I am curious about the future of equal rights in areas previously considered to be covered jurisdictions.
Regardless of how you view this issue, it is here to stay.
Peace
