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Friday, July 5, 2013

On the Voting Rights Act decision

On June 25, the Supreme Court issued a decision in Shelby County v. Holder which turned out to be an incredibly controversial decision.  Within a short time of the issuance of the decision, people were fulminating about how the decision would prove to be a setback for voting rights and implying that discrimination would once again run rampant.

The problem is that the decision is, in fact, a narrowly tailored decision that does make sense.  What the Court held is that Section 4(b) of the 1965 Voting Rights Act (as reauthorized in 2006) was unconstitutional because the section relies on the formula that was enacted during the 1972 reauthorization of the VRA that has not been changed since.  The Court also says that

                    Congress may draft another formula based on current conditions. Such a
                    formula is an initial prerequisite to a determination that exceptional conditions
                    still exist justifying such an “extraordinary departure from the traditional
                    course of relations between the States and the Federal Government.” Presley,
                    502 U. S., at 500–501. Our country has changed, and while any racial
                    discrimination in voting is too much, Congress must ensure that the legislation
                    it passes to remedy that problem speaks to current conditions.

In other words, if Congress were to update the formula to address issues that exist now (as opposed to using the old formula), the new formula could very well pass constitutional muster.

Before I go any further, I want to explain what exactly is at stake here.  Section 4 of the 1965 Voting Rights Act contains the formula which determines if a jurisdiction is subject to preclearance.  Any covered jurisdiction (using the now unconstitutional formula) has to submit any changes in voting laws to the Department of Justice or to a three judge panel to be approved prior to that change being enforced.  Preclearance was deemed to be necessary due to a historical pattern of discrimination in these areas against minority voters.  Any law which was deemed to have an adverse impact on minority voters would not be approved.   Basically, this was intended to prevent these jurisdictions from attempting to circumvent the law.

Note that preclearance itself was not declared unconstitutional.  That being said, preclearance cannot be applied at the current time due to the lack of a formula by which to decide which jurisdictions are covered by preclearance.  In other words, Congress must come up with and pass a new way to determine which jurisdictions are still discriminating against minorities in order to have those jurisdictions subject to Section 5 (i.e. preclearance).

Despite all the fulminations and complaints about this decision, it is not the harbinger of a resurgence of discrimination.  Rather, the Court has given Congress a clear path by which to allow section 4(b) to pass constitutional muster, namely rewrite the formula to apply it to today's problems rather than to the problems of 40 years ago.  Given the extensive nature of the hearings as described in the dissent, this should not be difficult to write, although it may be difficult to pass due to the polarized nature of the current Congress.

So, is this decision the horrible decision worthy of all the flak it is getting?  I think not.  It is, in fact, a well reasoned and very reasonable decision.  I just wish that people would actually read these decisions before demonizing them.  Or is that too much to ask?