Just last week, the SCOTUS decided on the constitutionality of Sections 4 and 5 of the Voting Rights Act (VRA) in Shelby County v. Holder. Section 4 describes certain voting areas which have used "tests and devices" or other programs to discriminate against minority voters. The areas are determined based on a "coverage formula". Section 5 restricts the use of these tests, protecting the equal right to vote for all citizens across the country. Ultimately, the decision found these sections unconstitutional, saying they are now unnecessary for the current political conditions; minority voting is at an all-time high, and minorities are holding elected offices at unprecedented rates. Is this enough? Was the VRA the reason?
The opening passage of the Opinion Syllabus says "The Voting Rights Act of 1965 was enacted to address entrenched racial discrimination in voting". The Court asserts the entrenched discrimination is not a current condition. Many were upset by the decision, and found it to be a setback in the suffrage rights and progress made to date. Others have found it to be a way to get Congress to move and look at current trends to take action.
With tomorrow being Independence Day, we thought it'd be interesting to share parts of a conversation M and I had on the decision, and get your thoughts, too.
Was the ruling correct?
M: Actually, I am surprised that Roberts did not recuse himself from ruling on that issue. I don’t know if you know it, but he actually worked on weakening the VRA in 1981 when he worked for the Reagan administration. Is that kind of strange that he didn't recuse himself? I mean, it is up to the individual justice, isn't it?
V: I agree. He should have recused himself. Looks like they made a questionable decision one day, but a great decision in the Defense of Marriage Act case the day after.
M: Well, here is more about Roberts’ philosophy: http://usatoday30.usatoday.com/news/washington/story/2011-12-31/supreme-court-recusal-policy/52307886/1
I do get their reasoning, but I don’t agree with it. From what I read in the decision, Roberts is saying that he does not believe that institutional racism exists anymore because more black people have been able to vote since the 60s (which is true). However, in practice, there were a number of attempts to create new voter registration burdens, even since the last time Congress extended the VRA in 2006. Even last year’s presidential election cycle had municipalities and states attempting to impose more barriers to voting that adversely affected the poor and minorities. The decision basically looks like they kicked it to Congress to create a new formula for section 4 and they must know that Congress will likely not agree on that (I doubt it would even make it to a vote).
Interestingly enough, Ginsburg’s dissent was pretty fiery. She had some sass in there.
V: I would add sass, too! I agree with Roberts' points on how voting access has changed, but maybe the answer here is to have Congress take another look at Section 4 and force them to do something based on what is happening now. To play Devil's Advocate, I don't doubt there's a slew of attempts to hamper minority and poor voting, but maybe, as applied, the current Section isn't working. I think what many don't see is, legislators are supposed to legislate, i.e. keep laws current for the times. So, something like this may not need a 50 year extension, it might need a 5 or 10, and should be re-examined and election cycles and trends change. I think this opinion is more scary for some people than flatly incorrect. The dissent addresses these points.
This also begs the question: If the current VRA was working, how were municipalities, etc able to implement discriminatory practices?
M: Ah, Ginsburg addresses your question: “…a reviewing court should expect the record supporting reauthorization to be less stark than the record originally made. Demand for a record of violations equivalent to the one earlier might expose Congress to a catch-22. If the statue was working, there would be less evidence of discrimination, so opponents might argue that Congress should not be allowed to renew the statue. In contrast, if the statue was not working, there would be plenty of evidence of discrimination, but scant reason to renew a failed policy regime.”
She later says in this passage that:
“In summary, the constitution vests broad power in Congress to protect the right to vote, and in particular to combat racial discrimination in voting. The Court has repeatedly reaffirmed Congress’ prerogative to use any rational means in exercise of power in this area.”
She also goes on to say that she felt Congress’s judgment in the 2006 reauthorization states that it has not been long enough to eliminate discrimination is not only true but “merits the court’s utmost respect”.
Good luck with forcing congress to do anything…if it gets to the point that congress having to do something would solve an issue, then forget about it (in the short term anyway). I think this might be a bigger deal in the mid-term and local elections than the presidential one. Sure, the presidential elections are all sexy and have all that ridiculous fanfare, but it is local and state elections (along with congressional ones) that really affect people on a day to day basis.
V: I couldn't agree with Justice Ginsburg more. She hits the nail right on the head. I think she makes a great point about the importance of local elections. Sure, the federal elections are important and high profile, but what really impacts voters, and with more immediacy are their local elections and elected officials. States should have their own sovereignty, sure. But, when it comes to such a critical federal right, it is the duty of the federal government to watch out for all citizens and be sure everyone is treated fairly. History tells us we can't always leave this in the hands of the locals.
Further, I am a major proponent of laws fitting the times and legislators being the conduits for keeping our laws relevant to the world we live in--so I get Chief Justice Roberts's points about times being different and the VRA having different impacts. However, as the opinion points out; "case-by-case litigation had proved inadequate to prevent such racial discrimination in voting, in part because States 'merely switched to discriminatory devices not covered by the federal decrees'". With circumstances like these, and litigation not even being a solution, something has to be done and remain in place. The opinion mentions the Act only applying to 9 states and impairing the tradition of equal sovereignty, yet standards to ensure equality in all States does not particularly discriminate against state sovereignty. Like the Home Rule authority used in many state for their larger municipalities, the intent and effect of the relevant VRA sections work to protect something to be afforded all citizens equally--and where the locals handle it improperly or inconsistently, it is up to the higher sovereign to step in. The reference to their prior case, Northwest Austin provided, the Act constitutes "extraordinary legislation otherwise unfamiliar to our federal system". This may be true. It is not then also unnecessary.
The opinion also notes in more than one place, the Voting Rights Act is, in fact, working. So why completely invalidated it, rather than call for more frequent review of its effect?. Forcing and waiting for Congress to take action is a big risk, if for any reason, because of the size of the legislature and magnitude of the issue. The dissent actually noted hearings both the House and Senate had on this issue, so it is being reviewed and examined. This further shows the importance of local elections--where voters can interact with their electeds easier, and see results in action sooner.