The Final Call

Key portion of Voting Rights Act struck down by Supreme Court

What's your opinion on this article?

‘A devastating setback for civil rights in America’ say activists

Ryan P. Haygood, director of the NAACP Legal Defense Fund, talks outside the Supreme Court in Washington, June 25, after the Supreme Court said a key provision of the landmark Voting Rights Act cannot be enforced until Congress comes up with a new way of determining which states and localities require close federal monitoring of elections.

By a 5-4 ruling in the case “Shelby County Alabama v. Attorney Gen. Eric Holder,” the majority struck down Section 4b of the law, declaring unconstitutional, the formula used to identify which state and local governments with a history of racial discrimination were required to get pre-clearance by the Justice Department or a federal court before enacting changes to their voter eligibility.

The decision was “a devastating setback for civil rights in America,” Barbara Arnwine, executive director of the Lawyers Committee for Civil Rights told reporters outside the Court after the decision.

The Court “has effectively gutted one of the nation’s most important and effective civil rights laws,” said Jon Greenbaum, chief counsel for the Lawyers Committee. Non-White voters in some areas are at more risk than they have been in decades of being deprived of their right to vote, Greenbaum said, declaring the ruling “a blow to democracy.”

Chief Justice John Roberts was blunt in his opinion for the Court’s majority. “Section 4 of the Voting Rights Act is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to pre-clearance,” said Mr. Roberts. But the law’s defenders cited evidence of voter suppression from the 2012 presidential election cycle as evidence that pre-clearance is still necessary.

Although the Supreme Court did not specifically strike down Section 5 itself, without Section 4(b), no jurisdiction is subject to preclearance unless and until Congress enacts new statutes determining which jurisdictions are to be covered based on updated information. Instead, the court ruling states in effect, the current formula which determines which states are covered by Section 5 is unconstitutional, which in essence eliminates its enforcement.

Rep. James Clyburn (D-S.C.), assistant House Democratic Leader pointed out to reporters that 38 states enacted some form of voter identification before the last election. Ohio and Pennsylvania were particularly blatant, he said, referring to some Republican officials who blatantly admitted their voter identification laws were meant to suppress the Black vote or to achieve partisan goals.

“If you look at…the actions that 38 states took in the run-up to the 2012 elections, there are records that have been developed,” Mr. Clyburn said. “Most of us are very familiar with the record that developed in Pennsylvania. And I’m pretty familiar with the activities taken by the secretary of state in Ohio. Let’s look at their language, and the record we will develop this time—we’ll bring their words into this record. We didn’t have their words in 2006 (when the VRA was overwhelmingly reauthorized by Congress). We’ve got them now.”

“The intent to turn the clock back is very, very clear,” said Mr. Clyburn. “I think that there are counties in Pennsylvania and in Ohio that would probably come under in the new formula that we develop.”

In Ohio in 2012, for example a close adviser to Governor John Kasich (R), said, “We shouldn’t contort the voting process to accommodate the urban—read African-American—voter-turnout machine.” In Pennsylvania, the Republican leader of the state House said voter identification laws are “gonna allow Governor Romney to win the state of Pennsylvania.”

While the Court’s majority said in its opinion, “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting…” the reality is, “a law is no law at all if there is no will to enforce it,” the Honorable Minister Louis Farrakhan told a rally in Birmingham, Alabama just days prior to the Supreme Court’s decision.

“Enforcement of laws benefiting Black people are so poorly enforced it’s a mockery,” Minister Farrakhan continued. “To take out Section 5 is to take out the enforcement so those who never wanted us to vote in the first place (can now) keep us going back and forth to court, litigating. We want enforcement, justice cannot settle for anything less,” the Muslim leader said at a rally adjacent to Birmingham’s historic 16th Street Baptist Church, where four innocent Black girls—Addie Mae Collins, Cynthia Wesley, Carole Robertson and Denise McNair—were murdered Sept. 15, 1963 by a bomb placed by a White supremacist-terrorist while the girls attended Sunday School.

“When I was in the courtroom there was a hush. When Chief Justice Roberts read, first that he was not striking down Section 5 completely, but that he was finding unconstitutional the formula by which certain southern states as well as Arizona and Alaska would have to pre-clear, there was a gasp in the courtroom,” Gloria Browne-Marshall, who teaches Constitutional law at John Jay College of Criminal Justice in New York City and who covers the Supreme Court for WPFW-FM in Washington, D.C., told The Final Call.

“It was people holding their breaths, and I can say personally, there was a sense of doom and gloom. The more he read, the more there was the sense that something was being taken away, and it was indeed being taken away—years of struggle that culminated in the loss of lives that gave us the 1965 Voting Rights Act had now been dismantled. It was a skeletal self. The heart of it removed, as well as its enforcement mechanism basically gutted, and it stands in form only,” said Professor Browne-Marshall, who has written two books on the Constitution.

“It is well established that Congress’s judgment regarding exercise of its power to enforce the Fourteenth and Fifteenth Amendments (granting citizenship and the right to vote to slaves) warrants substantial deference,” Justice Ruth Bader Ginzburg wrote in dissent. “When confronting the most constitutionally invidious form of discrimination and the most fundamental right in our democratic system, Congress’s power to act is at its height.”

But the justices in the conservative majority argued that times have changed so much since the law was enacted that the law now unjustly discriminates on the mostly southern jurisdictions subject to the pre-clearance requirement.

The VRA has been reauthorized by Congress four times, most recently for a period of 25 years in 2006, after 20 months of hearings which produced 15,000 pages of data. The Senate voted 98-0 and the House voted 390-33 for that reauthorization. The act has been upheld four times—most recently in 1999—by the Supreme Court.

Ironically, Justice Antonin Scalia who voted with the conservative majority to strike down the VRA despite its near-unanimous, bi-partisan, legislative and executive support accused the liberal majority of usurping Congressional authority, the very next day in its decision overturning the Defense of Marriage Act, and thereby legalizing same-sex marriage before the federal government. “That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive,” Mr. Scalia said of the DOMA decision, adding that the framers of the Constitution created a judicial branch with limited power in order to quote: “guard their right to self-rule against the black-robed supremacy that today’s majority finds so attractive.

“We have no power under the Constitution to invalidate this democratically adopted legislation,” he said in the case of DOMA, ignoring the fact that just one day earlier he was in agreement with the court’s decision to eviscerate the VRA.