WASHINGTON (USA TODAY) -- A bitterly divided Supreme Court effectively killed a key section of
the landmark Voting Rights Act on Tuesday, declaring that "our country
has changed," and that the law cannot be enforced unless Congress
updates it to take account of a half-century of civil rights advances.
court's 5-4 ruling in the case from Alabama frees - at least for the
moment -- states and municipalities with a history of racial
discrimination from having to clear changes in voting procedures with
the federal government. That restriction, part of the Voting Rights Act
of 1965, has applied to nine states and parts of six others, mostly in
Chief Justice John Roberts wrote the 5-4 decision in
Shelby County v. Holder for the court's conservative majority. The four
more liberal justices dissented.
The decision came in the second
of two major cases involving race to come before the high court this
term. In the other, decided Monday, the court reaffirmed that
affirmative action is constitutional but instructed lower-court judges
to look far more critically at whether schools can prove their use of
racial preferences is the only way to achieve a diverse student body.
opinion did not invalidate the Voting Rights Act's "preclearance"
requirement outright. Instead, Roberts said Congress failed to account
for broad changes in the nation's civil rights landscape since it first
laid out its method for determining which states and counties would be
covered by the requirement. That failure, Roberts wrote, left the court
"with no choice" but to invalidate Section 4 of the law, which spells
out which states face that additional scrutiny.
"Coverage today is
based on decades-old data and eradicated practices," Roberts wrote.
"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," he wrote.
decision leaves Congress an opening to reinstate federal oversight:
Lawmakers are free to come up with a new formula "based on current
conditions" to salvage the federal oversight requirement, Roberts
Congressional Democrats quickly said they would do
exactly that. "I intend to take immediate action to ensure that we will
have a strong and reconstituted Voting Rights Act that protects against
racial discrimination in voting," said Sen. Patrick Leahy, D-Vt., the
chairman of the Senate Judiciary Committee.
It is unclear, though,
how quickly Congress - itself divided and frequently stalemated over
issues ranging from taxes to immigration - could reenact the law, or
whether it would be able to do so at all.
"Congress now has the
duty to upgrade this key protection and ensure our elections remain
free, fair, and accessible for all Americans," said Michael Waldman,
president of the Brennan Center for Justice.
Justice Ruth Bader
Ginsburg, in a long dissenting opinion that traced a history of recent
voting discrimination, said Congress already had more than enough
justification for singling out some states and not others. "Recognizing
that large progress has been made, Congress determined, based on a
voluminous record, that the scourge of discrimination was not yet
extirpated," she wrote. "In my judgment, the Court errs egregiously by
overriding Congress' decision," she wrote.
The decision met with
swift condemnation from civil rights advocates, who accused the court's
conservatives of destroying a law that has been responsible for helping
to stamp out discrimination at the ballot box.
"The Supreme Court
has effectively gutted one of the nation's most important and effective
civil rights laws," said John Greenbaum, chief counsel for the Lawyers'
Committee for Civil Rights Under Law. "Minority voters in places with a
record of discrimination are now at greater risk of being
disenfranchised than they have been in decades. Today's decision is a
blow to democracy."
Roberts, joined by justices Antonin Scalia,
Samuel Alito, Clarence Thomas and Anthony Kennedy, said federal election
oversight is a deep and unusual intrusion into states' normal ability
to manage their own affairs, one he wrote was justified by pervasive
voting discrimination when the law was enacted. But he said that
Congress had not adequately justified singling out the same states for
"This is a victory for all voters as all states
can now act equally without some having to ask for permission or being
required to jump through the extraordinary hoops demanded by federal
bureaucracy," South Carolina Attorney General Alan Wilson said.
Clarence Thomas, the court's lone African-American, wrote in a separate
opinion that he was willing to go farther and invalidate the Voting
Rights Act's preclearance requirement, known as Section 5, altogether.
The court's narrower decision Tuesday, he said, "needlessly prolongs the
demise of that provision."
The Voting Rights Act was passed by
Congress and signed by President Lyndon Johnson -- with the Rev. Martin
Luther King Jr. standing near -- in the wake of the violence and
bloodshed that marked the 1950s and 1960s throughout the South.
outlawed the types of voting practices that were common in many states,
such as poll taxes and literacy tests, and set up legal and regulatory
processes to overturn them.
The steel spine of the law was Section
5, which required certain states and municipalities to get federal
permission before making changes in voting practices. Before it was
invalidated on Tuesday, Section 4 of the law laid out which parts of the
country would be subject to that requirement.
Under a formula
devised to capture those states, Alabama, Georgia, Louisiana,
Mississippi, South Carolina, Texas and Virginia, along with Arizona and
Alaska, emerged with what they now consider a scarlet letter. The law
was reauthorized in 1970, 1975, 1982 and 2006 with only minor changes.
But the Supreme Court's majority finally lost patience with
lawmakers who had refused to update the list of states and
municipalities deemed discriminatory, despite wholesale gains in the
South by blacks and other minority voters and elected officials.
The ruling tosses the ball back to Congress, which could try
to update a coverage formula based on 1972 data. Few observers, however,
expect lawmakers to pick and choose among states and municipalities,
even if they could overcome political inertia.
conservatives, led by Roberts, had signaled their intentions during
oral arguments in February. They expressed disdain for a geographic
formula last updated in 1972 that forces most of the Deep South -- but
also certain municipalities from Florida to Alaska -- to check even the
relocation of polling places with the Department of Justice.
Anthony Kennedy, the court's perennial swing vote, likened the states'
plight to being "under the trusteeship of the United States government."
Justice Antonin Scalia drew gasps inside the courtroom when he referred
disdainfully to "racial entitlements."
And Roberts had long ago
signaled his impatience with laws that give minorities a leg up on
whites. In a 2007 decision on public school integration, he famously
declared: "The way to stop discrimination on the basis of race is to
stop discriminating on the basis of race."
Roberts and the court
had punted on the issue four years ago, ruling that a Texas water
district - and any municipality, for that matter - could get out from
under Section 5 by demonstrating 10 years of good behavior. More than
200 municipalities have done so since the law's inception.
then, however, Roberts had warned that "things have changed in the
South" and the pre-clearance requirements and coverage formula "raise
serious constitutional questions."
The new case came to the court
with two lower court strikes against Shelby County's challenge. In the
most recent decision, the U.S. Court of Appeals for the D.C. Circuit
ruled last year that the coverage formula "is not perfect, but the fit
was hardly perfect in 1965."
The Obama administration warned the
court not to mess with Congress' legislative authority. "Invidious
racial discrimination is the most pernicious form of governmental
discrimination prohibited by the Constitution," the government's brief
said. That puts Congress "at the zenith of its constitutional
Civil rights advocates and the court's left-leaning
justices noted that the provision was used as recently as last year to
beat back photo ID laws, redistricting plans and restrictions on early
voting. Without it, they said, states could resume discriminatory
But opponents of the law argued that the types of state
and local election laws that continue to draw fire today "exist to a
greater degree outside those covered jurisdictions than they do inside
the jurisdictions," said Edward Blum, director of the Project on Fair
Representation, who helped initiate Shelby County's lawsuit.
sides agree that progress has been made: Black voter turnout topped
white turnout in last year's presidential election and was strongest in
some of the Southern states subjected to the strictest oversight under
the Voting Rights Act.
Minorities also have been elected to local
offices in record numbers, thanks to the creation of so-called
"majority-minority" districts. In 1965, the 11 states of the Old
Confederacy, stretching from Virginia to Texas, had a total of three
black state legislators. By 2009, the number had grown to 321, or 18% of
the total, according to the National Conference of State Legislatures.
over the same period, Southern legislatures that were overwhelmingly
Democratic in 1965 have turned Republican. Today, the GOP controls both
houses of the legislatures in all 11 states.
In recent years, the
number of objections by the Justice Department to states' voting changes
has declined dramatically. In 1976, there were 64 objections, including
30 in Texas alone. In recent years, the number dropped to five or less.
While there were 10 objections last year, this year has produced only
Meanwhile, the number of municipalities that have "bailed
out" of Section 5 by maintaining a clean record on voting rights for 10
years has risen. From 1998 to 2008, only Virginia municipalities were
excused from federal oversight. In the last three years, they were
joined by several in California, Texas, Alabama, and the entire state of
The law's defenders say Section 5 prevented Texas,
Florida and South Carolina from enacting new voting restrictions in
2012. This year, they say, it stands as a bulwark against similar
discrimination. In Beaumont, Texas, a school board election was canceled
to prevent white candidates from running unopposed in three
majority-black districts. In North Carolina, lawmakers have proposed new
restrictions on voter identification, registration and early voting.
The remainder of the Voting Rights Act wasn't challenged in the case.
The law still will provide for legal challenges to voting changes
deemed discriminatory in any state. But those after-the-fact challenges
can be costly and time-consuming.
Richard Wolf and Brad Heath, USA TODAY