Supreme Court Strikes Down Part of the VRA

Well, at least this court is not taking a sledgehammer to stuff. It seems to have a cautious, roundabout way of getting to what it wants. The Supreme Court struck down part of the Voting Rights Act today, though not, I suppose, the part we thought it might. Shelby County sued to overturn section 5, which requires covered jurisdictions to get approval from the Justice Department before making any changes in election laws. The court said section 5 is technically constitutional, and struck down section 4 instead.

But the important thing to understand is that section 5 is effectively inoperable without section 4. It is section 4 that contains the coverage formula determining which states and municipalities are subject to preclearance requirements. The court has ruled that the formulas are based on old data and old circumstances and thus unconstitutionally impose a burden on some parts of the country and not on others.

The court has invited congress to write a new formula, but we all know this congress will never do that. So without a formula, section 5 lies dormant. No one can be subject to preclearance when the standards for who qualifies are removed. I think this ruling was wrong on its merits, but the conservatives on this court are ideologically predisposed to removing protections of minority rights. The four liberals dissented, and I thought Ginsburg's point about congress's work in renewing the act seven years ago and the continued relevance of the coverage formula was right on:

I begin with the evidence on which Congress based its decision to continue the preclearance remedy. The surest way to evaluate whether that remedy remains in order is to see if preclearance is still effectively preventing discriminatory changes to voting laws...On that score, the record before Congress was huge. In fact, Congress found there were more DOJ objections between 1982 and 2004 (626) than there were between 1965 and the 1982 reauthorization (490)...

All told, between 1982 and 2006, DOJ objections blocked over 700 changes based on a determination that the changes were discriminatory...Congress found that the majority of DOJ objections included findings of discriminatory intent...and that the changes blocked by preclearance were "calculated decisions to keep minority voters from fully participating in the political process."

Set against that record, it can't seriously be argued that the de facto elimination of preclearance the court instituted today will not harm minority voting rights. What can be argued, and this seems to reflect the court's priorities, is that unequal treatment of states is to be guarded against more assiduously than unequal treatment of citizens. This perspective goes at least as far back as John Calhoun, the brilliant defender of slavery, who believed the fundamental principle of the constitution was not equality of individuals, but of states.

Yeah, it's really messed up.