Why the Voting Rights Act Likely Won’t Survive Supreme Court Review

Why the Voting Rights Act Likely Won’t Survive Supreme Court Review

Why the Voting Rights Act Likely Won’t Survive Supreme Court Review

The Voting Rights Act is, in some ways, living on borrowed time. 


While the United States was grappling with whether or not to re-elect its first African-American president, Louisiana was wrestling over whether to appoint its first African-American Chief Justice for its State Supreme Court. Bernette Johnson's destiny was temporarily deferred when some of her fellow Supreme Court Justices and Gov. Bobby Jindal challenged her right to succeed retiring Chief Justice Catherine Kimball. Louisiana law dictates that the justice who's served the longest on the bench takes over as chief when the sitting one leaves. Johnson, the court's only black judge, took the bench in October of 1994, while Justice Jeffrey Victory came on in January 1995.

But Victory declared he had seniority, arguing Johnson's first few years on the bench didn't count because it was a special appointment made by a federal consent decree. Indeed, Johnson's Supreme Court seat was made available because the electoral districts at the time were drawn so that no black Louisianians would ever have the kind of plurality needed to elect a candidate who represented their interests. When you're black and live in a Southern state that venerates its Confederate heritage while leading the world in locking people up, voting for a judge kinda matters to you.

The consent decree carved out a special district where African Americans could elect a judge of their choice, which turned out to be Johnson who was granted all of the powers of a state Supreme Court justice, despite the unique appointment. Civil rights lawyers, including current Urban League president Marc Morial, pushed for that decree by way of the Voting Rights Act, which is violated when "it is shown that the political processes leading to nomination or election . . . are not equally open to participation by members of a protected class . . . in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."

Johnson was ultimately granted her chief justice seat just a month ago, but the Voting Rights Act that served as her scaffold is insecure. A few days after President Obama was re-elected, the U.S. Supreme Court decided to take up Shelby County, Ala. v Eric Holder, a challenge to VRA's Section 5, which Holder himself calls "our nation's most important civil rights statute."

What Shelby disagrees with is Section 5's "pre-clearance" power, which makes certain states and counties with histories of racial discrimination prove that no disenfranchisement will result from election policy changes. As I wrote earlier this year, Section 5 is a precautionary principle agent that forces election law-changers to prove a change isn't harmful before implementation, as opposed to letting the change happen unvetted and then dealing with any harm later.

Shelby is also arguing that the Section 5 formula they're subjected to is obsolete, given that it's mostly based off data from the 1960s. They believe they are being held to a stricter legal scrutiny than other counties and states that have worse voting problems, namely non-Section 5 covered jurisdictions. The Voting Rights Act was passed in 1965, and it was extended four more times, the latest in 2006 when Congress extended it for 25 years. But Congress failed to update the Section 5 covered jurisdiction formula in that last extension, and hence the law in its current version is unconstitutional, argues Shelby, for impeding on states' rights. (For more on "states' rights" listen to this audio file of Republican "Southern Strategy" architect Lee Atwater.)

Regardless of what you think of that argument, all that matters is that it's being made before Chief Justice John Roberts' Supreme Court, which has shown no sympathy, if not shown flat-out resentment, for laws they believe support racial preferences. A Section 5 challenge was before the Roberts Court in 2009, but they chose not to rule on its constitutionality then. However, Roberts in his opinion stated that Section 5 "caused Members of this Court to express serious misgivings about" its constitutionality, mainly due to the decades-old coverage formula.

Despite Section 5's anachronistic formula, its application has been anything but oppressive. Covered jurisdictions can apply for a bailout — a get out of Section 5 jail free card — and many have been granted. The number of voting rules changes denied by the Department of Justice has been less than 1 percent of the total submitted. The past two years DOJ appeared to do a lot of blocking, but that's because an unprecedented number of voter law changes were passed in that time. Still, they cleared voter ID laws in Virginia and New Hampshire.

Journalists and voting rights advocates have made many good-spirited defenses of VRA recently, citing how Section 5 protected voters of color in Florida, Texas, Mississippi, and South Carolina from voting law changes that could have led to their disenfranchisement. My colleague Ari Berman wrote at The Nation that "only a Supreme Court wholly divorced from reality would review the record on voting rights … and conclude that a key pillar of the law was no longer needed."

I understand the sentiment, but unfortunately that's not the case before SCOTUS, which, to be fair, is probably looking more closer at the reality than it's getting credit for. That reality is that a lot has changed since 1968 — the last year upon which Section 5's data formula rests upon — and Congress has failed to take that into consideration.

There have been important changes made to VRA since 1965, including the 1975 amendments that expanded the formula to include areas that discriminated against people who don't speak English, which is how Texas and five counties in Florida became covered jurisdictions. Most important, though, was the 1982 VRA amendment, which added the precautionary principle — the "results test."

Roberts is not a fan of said test. When it was proposed by civil rights lawyers as a remedy, so that VRA could more effectively address vote dilution processes like gerrymandering, Roberts went HAM. At the time a 20-something-year-old lawyer representing the Reagan administration, he sounded every alarm about why the discriminatory effect clause shouldn't happen. Election law expert Rick Hasen wrote this about the 1980s Roberts in a 2005 L.A. Times column:

During the Senate debates, for instance, Roberts wrote that the attorney general had to "get something out somewhere soon" [original emphasis] explaining the administration's position because the "frequent writings in this area by our adversaries have gone unanswered for too long." He called on the administration to take an "aggressive stance" against the changes to Section 2. When it was over and Section 2 had been amended, Roberts wrote that "we were burned."


Roberts' 2009 "serious misgivings" comment on VRA shows that his perspective hasn't evolved much. In that same ruling, his fellow justice Clarence Thomas flat out called VRA unconstitutional. Meanwhile, Justice Antonin Scalia and Kennedy exhibited similar VRA disappointment in Chisom v Roemer, the Supreme Court case that led to the creation of the black-majority district in Louisiana responsible for making Bernette Johnson the first black State Supreme Court Justice in 1994 — and Louisiana's first black State Supreme Court Chief Justice today.

The US Supreme Court's Chief Justice will likely strike the clause that helped make Johnson's ascendancy possible in Louisiana. More disappointing, though, is that the Section 5 remedy didn't address racial voting problems that arose in states like Ohio, Colorado and the 62 non-Section 5 counties in Florida this past November. Even Pennsylvanians had to suffer through a voter ID legal battle that went into double-overtime, ending in the law only temporarily struck while voter confusion continued to molest Election Day. These states deserve Section 5's attention, and unfortunately they're not getting it. That's not a good recipe for a SCOTUS chief who's looking for any excuse to revenge getting "burned."

— Brentin Mock

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