By Jess Bravin
Justices End Nearly 50 Years of U.S. Oversight of Election Laws in Much of the South
The Supreme Court nullified a core provision of the Voting Rights Act in an ideologically divided ruling that eroded a landmark of the civil-rights era and threw the issue into the lap of a gridlocked Congress.
In a 5-4 decision, Chief Justice John Roberts said Jim-Crow era discrimination no longer justified requiring a group of mostly Southern states to seek Washington’s approval before changing election practices. Joined by the court’s other conservatives, he said the court had to act to uphold states’ sovereignty, sparking a dissent from liberals who said the ruling would undermine progress made since the law was passed in 1965 to ensure fair treatment at the polls.
Tuesday’s ruling substantially eases the path for lawmakers in states that had been under federal supervision, which now can immediately implement changes in their election procedures without first obtaining clearance from the Justice Department. Nine states and portions of six others, primarily in the South and largely now under Republican control, are affected. Some, such as Texas, have clashed with the Justice Department over measures ranging from legislative redistricting to voter-identification laws.
The court, ruling in a challenge brought by Shelby County, Ala., left standing Section 5 of the Voting Rights Act, which gives the federal government authority over states that historically suppressed minority votes. But that section was effectively nullified by the court, which said the formula used to identity such jurisdictions, contained in Section 4, is not constitutionally valid because it is based on decades-old voter-participation data.
That move gives Congress the option of embarking on what would likely be a fraught effort to craft a new formula to meet the court’s concerns. Such action seems unlikely.
In contrast to 2006, when most Republicans supported the Voting Rights Act’s reauthorization—it was signed by President George W. Bush after passing Congress overwhelmingly—congressional Republicans today are more skeptical of measures they believe would extend federal power.
President Barack Obama issued a statement saying he was “deeply disappointed” by the ruling.
“Today’s decision invalidating one of its core provisions upsets decades of well-established practices that help make sure voting is fair, especially in places where voting discrimination has been historically prevalent,” he said.
He urged Congress to pass new voting-rights legislation, a call echoed by congressional Democrats and civil-rights groups.
States that long have chafed under the Voting Rights Act supervision praised the Supreme Court for releasing them from federal oversight.
South Carolina unsuccessfully challenged the Voting Rights Act immediately after its 1965 passage. On Tuesday, the state’s attorney general said the court’s ruling was long past due.
“For nearly 50 years, Sections 4 and 5 have imposed an extraordinary intrusion into state sovereignty in certain states, including South Carolina,” said the attorney general, Alan Wilson. “This is a victory for all voters as all states can now act equally without some having to ask for permission or being required to jump through the extraordinary hoops demanded by federal bureaucracy.”
The ruling doesn’t affect other elements of the Voting Rights Act that prohibit discriminatory voting procedures nationwide. Both the Justice Department and individual voters can file suit if they believe state or local authorities are in
A Justice Department official said Tuesday that as of last week, 276 requests were pending from states under the so-called preclearance regime. The 30 or so employees who currently process such applications would be reassigned to enforce other federal election laws, the official said.
The preclearance provisions were enacted in 1965 after earlier federal efforts to protect voting rights had failed throughout the South. Courts would block one discriminatory practice only to find local white officials quickly moving to install another one in its place.
Chief Justice Roberts wrote that the preclearance provision was justifiable when enacted—and when the Supreme Court first upheld it in 1966.
“This was strong medicine, but Congress determined it was needed to address entrenched racial discrimination in voting,” he wrote. “But history did not end in 1965.”
The formula still used to identify states subject to preclearance involved past voting practices. In 1965 and through several subsequent reauthorizations, Congress identified states and localities that required voters to pass such obstacles as literacy or character tests, and had less than 50% voter registration or turnout in the 1964, 1968 and 1972 federal elections.
In 1965, Chief Justice Roberts wrote, the formula made sense. In Mississippi, for instance, 69.9% of whites were registered to vote, compared to 6.7% of blacks. In 2004, by contrast, black registration in Mississippi actually exceeded that of whites, 76.1% compared to 72.3%.
He observed that Philadelphia, Miss., where civil-rights workers James Chaney, Andrew Goodman and Michael Schwerner were murdered in 1964, and Selma, Ala., where “Bloody Sunday” saw police beat voting-rights marchers in 1965, both have African-American mayors today.
While the Voting Rights Act was “immensely successful at redressing racial discrimination and integrating the voting process,” it had done so by undermining “the integrity, dignity, and residual sovereignty of the States,” the chief justice wrote.
“States must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own,” he said.
Moreover, he recalled that in a 2009 case, the court had signaled its doubts over the preclearance provisions. “Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice,” he wrote, joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito.
Justice Ruth Bader Ginsburg took the symbolic step of reading her dissent from the bench.
“Justices [Stephen] Breyer, [Sonia] Sotomayor, [Elena] Kagan and I are of the view that Congress’ decision to renew the act and keep the coverage formula was an altogether rational means to serve the end of achieving what was once the subject of a dream: the equal citizenship stature of all in our polity, a voice to every voter in our democracy undiluted by race,” she said.
She recalled that the 14th and 15th amendments were ratified after the Civil War to prevent the defeated Confederate states from denying equal rights to freed blacks—and gave enforcement authority to Congress.
The court said in 1966 that Congress could use “any rational means” to address racial discrimination in voting, and Justice Ginsburg said Tuesday that the evidence lawmakers compiled in 2006 demonstrated that the extension of the law was rational.
Between 1982 and 2006, the Justice Department “blocked over 700 voting changes based on a determination that the changes were discriminatory,” she wrote. That was enough to show that covered jurisdictions were still targeting minority voters—and suggested that the numbers would be worse without the deterrent effect of the preclearance requirement, she said.
Justice Ginsburg argued that the intrusion on state sovereignty was limited, because jurisdictions that maintain a clean record for 10 years can apply for exemption from preclearance, a process known as “bailout.”
The Justice Department has approved dozens of such bailouts, particularly after the 2009 Supreme Court decision expanded the number of localities eligible to apply. The Obama administration approved the most recent such bailout, for Hanover County, Va., on Monday.
A version of this article appeared on The Wall Street Journal.