Supreme Court scraps Voting Rights Act pre-clearance formula



The 5-4 decision tossed out the nearly half-century-old Voting Rights Act formula that determined which areas were required to submit their voting laws for “pre-clearance” with the Department of Justice. The court left the door open for Congress to adopt a new formula, based on more current evidence of racial discrimination — should lawmakers choose to put aside their partisan divisions.

But continued use of the 1965 pre-clearance formula is “unconstitutional in light of current conditions,” in the words of Chief Justice John Roberts’ majority opinion.

What that means for Fulton County, whose redistricting plan is pending before the Justice Department, was not immediately clear. Laughlin McDonald, the director of the ACLU Voting Rights Project, said the ruling could call into question any Justice Department pre-clearance challenge since 2006, when Congress last reauthorized the law.

Passed mere months after the televised horrors of Bloody Sunday in Selma, Ala., the Voting Rights Act of 1965 has been consistently lauded – as it was again in the court’s majority opinion – for giving minority citizens access to the ballot box. Until its passage, African Americans had faced literacy tests, poll taxes and other blatantly racist barriers, not to mention intimidation and outright violence in their struggle to exercise the right to vote guaranteed to them by the 14th Amendment to the Constitution.

Full exercise of that right was among the foremost goals of the civil rights movement, many of whose leaders emerged from Atlanta: Martin Luther King Jr., Joseph Lowery and U.S. Rep. John Lewis, to name a few. But over the decades, as the law’s most powerful tool, the pre-clearance requirement also spawned a backlash among many white southerners, who felt they were being unfairly punished for the sins of their fathers and grandfathers.

The portions of the law the court invalidated, contained in sections 4 and 5, cover all of Georgia, Alabama, South Carolina, Louisiana, Mississippi, Virginia, Texas, Arizona and Alaska, and parts of seven other states with a history of overt discrimination in voting practices.

Lewis, who attended President Lyndon Johnson’s signing of the Voting Rights Act and is the last living speaker from the March on Washington 50 years ago, said he was troubled by the decision.

“We brought about changes, but the act is still needed in many parts of America, and especially in the American South where we had a long history of discrimination,” Lewis said. “It may not be that open. It may not be that visible. But by making this decision, we could go back. … It is frightening.”

Covered jurisdictions have long complained that submitting any voting changes to the Department of Justice for pre-clearance is burdensome. The court challenge was filed by Shelby County, Ala., outside Birmingham.

The entire country remains subject to Section 2 of the law, which allows citizens to file lawsuits challenging any voting practice they contend is discriminatory.

“It doesn’t mean that we don’t still have to follow the law or that we won’t get sued if we don’t follow the law,” said Georgia Secretary of State Brian Kemp, a Republican. “It just shifts the burden from us having to prove to other groups having to prove (discrimination) — and that’s huge for the taxpayers of Georgia.”

As for the immediate impact, local officials are still trying to sort that out. Atlanta voting rights attorney Bryan Tyson said he expects the Justice Department to issue guidance on what will happen to pending cases in the next week. But he thinks Fulton County’s redistricting plan will take effect immediately without federal review.

“I think the legal effect is the Department of Justice has no basis to stop a law from going into effect,” Tyson said.

The same could apply in Macon, where elections for a new consolidated government originally scheduled for June have been delayed indefinitely by the Justice Department.

“At first blush, this looks like this is a decision we’re very happy with,” said state Rep. Allen Peake, R-Macon. “It means we don’t need to go through the tedious task of pre-clearance for every single small change with elections in this state.”

Attorney General Eric Holder on Tuesday said the Justice Department will still undertake “swift enforcement action – using every legal tool that remains available to us.” But he did not discuss how the court’s ruling might affect pending cases.

Twelve times since 2000 the federal agency has blocked voting changes in Georgia, most often in cases arising from specific localities rather than statewide actions. Most recently, the agency blocked a state law that would have moved municipal elections in consolidated Augusta-Richmond County from November to July, when minority turnout historically has been far lower.

When reauthorizing the Act in 2006 by an overwhelming margin, Congress compiled an extensive record of present-day discrimination practices, mostly related to the dilution of minority voting power rather than overt denial of the franchise. But Roberts wrote “Congress did not use that record to fashion a coverage formula grounded in current conditions. It instead re-enacted a formula based on 40-year-old facts having no logical relation to the present day.”

U.S. Rep. Lynn Westmoreland, a Coweta County Republican, was one of few members of Congress to vote against reauthorizing the Act in 2006. He proposed that Congress rewrite the pre-clearance formula using data on voter participation from the most recent presidential elections.

Data cited in Roberts’ opinion underscored Westmoreland’s assertion that Georgia was unfairly targeted: In 2004, a greater percentage of black voters were registered in Georgia than white voters.

In her dissent writing for the court’s four liberal members, Justice Ruth Bader Ginsburg said that is too simplistic a calculation. The majority opinion, Ginsburg wrote, “makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story.”

Both Holder and President Barack Obama urged Congress to take swift action, but even though reauthorization of the Voting Rights Act has had big bipartisan support, this divided Congress has proven particularly fractious.

And Obama’s mere presence in the Oval Office — recently elected to a second term due in part to big minority turnout — has fueled the argument that the most stringent parts of the Voting Rights Act already have achieved their goal.

“As a nation, we’ve made a great deal of progress towards guaranteeing every American the right to vote,” Obama said. “But, as the Supreme Court recognized, voting discrimination still exists. And while today’s decision is a setback, it doesn’t represent the end of our efforts to end voting discrimination.”



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