While the Court did not strike down Section 5, it did strike down its operational core—Section 4—which establishes the coverage formula the federal government uses to determine which states and counties are subject to continued federal oversight. Chief Justice John Roberts in writing for the 5-4 majority noted “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.” Under the majority’s reasoning, “If Congress had started from scratch in 2006,” the last time the Voting Rights Act was reauthorized, “it plainly could not have enacted the present coverage formula.”
For the Court to say that such coverage formulas are outdated is reasonable in the face of enormous improvements in minority voter registration and participation. Roberts illustrates his point by providing the following chart comparing voter registration numbers from 1965 to 2004.
As the Chief Justice stressed “There is no doubt that these improvements are in large part because of the Voting Rights Act,” noting “[t]he Act has proved immensely successful at redressing racial discrimination and integrating the voting process.” Roberts would conclude “Those extraordinary and unprecedented features were reauthorized — as if nothing had changed.” Likewise it is reasonable for the Court to want the Congress to update them.
However, to use the success of the Voting Rights Act as a means to gut it is not reasonable. As Justice Ruth Bader Ginsberg aptly noted in her dissent “The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that pre-clearance is no longer needed.”
We should not be misled to believe that those States subject to the provisions of the Voting Rights Act have in place the political infrastructure to protect and guard against race-based denial of voting rights, whether intentional or unintentional. Lest the Court forgets: the “right” to vote does not guarantee “access” to the ballot box.
We only need to look at our most recent electoral history, to witness the difficulties still existing in the American electoral process even among those states not subject to the Act. Since 2000, presidential elections, along with countless local and state elections remain subject to allegations of abuse, fraud and civil rights violations, not to mention blatant efforts by state legislatures in Pennsylvania, Florida and Ohio to rewrite existing election laws viewed by many Americans, especially African Americans, to suppress the vote in 2012.
Consequently, it has become even more important in this post-Civil Rights age to maintain the integrity of the election process. Moreover, it is just as important to recognize the value of the Act not just to those States subject to its requirements, but to those who could otherwise be aided by the pre-clearance process. For example, Maryland is not a pre-clearance jurisdiction but is not totally unaffected by Section 5 of the Act. The pre-clearance process at the Department of Justice has assisted in illustrating discriminatory election processes and districting plans and works to set a bar for the redistricting process and electoral process in non-covered states.
African-Americans, Latinos and other ethnic or racial minorities will not participate in an electoral system or process that they do not trust or in which they feel their vote does not count. Nor are they served by an electoral system or process which takes their vote for granted because it has become stagnant, self-serving and monolithic.
Quoting one of our nation’s most famous Voting Rights advocates, Susan B. Anthony: “in the first paragraph of the Declaration [of Independence], is the assertion of the natural right of all to the ballot; for how can ‘the consent of the governed’ be given if the right to vote be denied?”
The Supreme Court appears to have turned that sentiment on its head.