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U.S. Supreme Court strikes down pertinent part of Voting Rights Act

June 25, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
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The Supreme Court ruled Tuesday that a key provision of the landmark Voting Rights Act cannot be enforced unless Congress comes up with an up-to-date formula for deciding which states and localities still need federal monitoring. 

The justices said in a 5-4 vote that the law, most recently renewed by Congress in 2006, relies on 40-year-old data that does not reflect racial progress and changes in U.S. society.

The challenge to the Voting Rights Act arose when Shelby County, Alabama, sued the United States Department of Justice, charging that portions of the law are unconstitutional. At the forefront of the case was Section 5 of the Act, which requires that jurisdictions that had once imposed literacy tests and had less than 50 percent voter turnout in the 1964 or 1968 elections be subject to special scrutiny by the Department of Justice or a panel of judges from U.S. District Court for D.C. when changing their election and voting laws.

This is known as “preclearance,” and its purpose is to ensure that the voting power of racial and ethnic minority groups is not diminished.

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The court kept Section 5 intact and instead focused on Section 4, which sets out the definition and establishes the formula for states and jurisdictions that are subject to Section 5’s preclearance.  “The coverage formula that Congress reauthorized …  keep[s] the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs,” Chief Justice John Roberts said, writing for the majority. Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined the majority opinion.

“The Supreme Court’s decision to strike down Section 4 is deeply disappointing,” said New York State Attorney General Eric Schneiderman.

Without a formula for determining which jurisdictions must have any changes to their voting laws precleared by Congress, the requrement for Section 5’s preclearance is obsolete, making Section 5 dead-letter law. Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, said, “This is like letting you keep your car, but taking away the keys.”

Justice Ruth Ginsburg, writing the dissent that was joined by three of her colleagues, Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, noted that while everyone agrees that discrimination in voting still exists, “the court today terminates the remedy that proved to be best suited to block that discrimination.”

She read her dissent aloud from the bench, a gesture made by justices as a means of highlighting their position that the majority opinion is fundamentally incorrect and flawed.

Ginsburg said the law continues to be necessary to protect against what she called subtler “second-generation” barriers to voting. She identified one such effort as the switch from district-by-district voting to at-large voting in a city with a sizable black minority. The at-large system allows the majority to “control the election of each City Council member, effectively eliminating the potency of the minority’s votes,” she said.

The New York City Council’s Black, Latino and Asian caucus members, along with Mayor Michael Bloomberg, filed an amicus brief in support of the constitutionality of the Voting Rights Act. When oral arguments were being heard in the case, Brooklyn Law School Professor William Araiza commented that it was “potentially a big deal.”  

In striking down Section 4, the court did say that lawmakers must update the formula for determining which parts of the country must seek Washington’s approval in advance for election-law changes. In other words, although the present formula used to establish which states are subject to the law was stuck down as outdated and thus unconstitutional, Congress may, as Roberts wrote, “draft another formula based on current conditions.”

“[I]t is now the responsibility of Congress,” noted Schneiderman, ” to ensure that the Voting Rights Act continues to play its vital role in strengthening our democracy and combating and deterring voting discrimination.”

“This case involved a battle of data with the majority asking, ‘Does the coverage criteria make any sense today?’ and the dissent, on the other hand, questioning, ‘Was it rationale for congress to have kept the same coverage criteria to reauthorize the act in 2006?’  noted Professor Araiza.

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