The U.S. Supreme Court ruled today that Section 4 of the Voting Rights Act of 1965 is unconstitutional. The 5-4 vote in Shelby County v. Holder came down along ideological lines, with the five conservative justices voting together, including Chief Justice John Roberts. Associate Justice Ruth Bader Ginsburg authored the dissenting opinion.
Section 4 determines which jurisdictions must get pre-clearance from a federal court or the U.S. Department of Justice before making changes to voting laws. The jurisdictions affected were states and counties primarily located in the South. The court did not rule on Section 5 of the Act, which requires pre-clearance for those states and jurisdictions. As recently as 2006, Congress had re-authorized the Voting Rights Act, by a vote of 390-33 in the House and a unanimous vote in the Senate.
The majority opinion, written by Roberts, stated that the data used to determine the states is old and the gap between minority populations and voter turnout in states where the law was necessary no longer are as disparate. In her dissenting opinion, Ginsburg cited several examples of voter discrimination laws created but struck down within the last 15 years.
“In essence, the court is telling Congress to look at it all over again. The problem is, the four dissenting justices pointed out, Congress did that in 2006, built upon the existing record additional proof of why the Voting Rights Act was necessary to be reauthorized,” said Tim Delaney, president and CEO of the National Council of Nonprofits in Washington, D.C.
Within hours of the decision, NAACP posted a petition on its website urging Congress to act to protect voting rights. “In striking down Section 4 of the Voting Rights Act — but leaving Section 5 untouched — there is no longer a mechanism in place to prevent states with a history of voter disenfranchisement from enacting such laws. While this is a setback, it is by no means the end of the game. The Supreme Court’s decision gives Congress complete authority to ensure no person is denied the right to vote,” according to NAACP.
The states affected include Alabama, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, while other jurisdictions with a history of voting discrimination, including counties and municipalities in other states, also are affected by the ruling.
The Constitution of the United States and, in particular, the 15th Amendment, makes clear that it is the job of Congress to figure out how to prevent racial discrimination in voting, according to Nan Aron, president and CEO of the Alliance for Justice (AFJ), a national association of more than 100 progressive organizations dedicated to nonprofit advocacy.
“By overturning a crucial part of the Voting Rights Act, five justices betrayed the principles of justice and fairness embodied in this law for half a century – and showed a callous disregard for the realities still faced by people of color,” Aaron said. She called on Congress to act to restore the power of the VRA “to serve as a bulwark against persistent discrimination.”
The Voting Rights Act protects a fundamental right, “not, as Justice (Antonin) Scalia infamously suggested, a ‘racial entitlement.’ Attempts to suppress the vote were common during the 2012 presidential election and they continue,” according to Aron.
“It’s important for people to see there are multiple layers in this case and decision,” said Delaney, adding that it would affect nonprofits indirectly. It appears to be a voting rights case on the surface but also raises the issue of power between governments and whether the federal government should exert certain powers over the stats, and at its core is about the separation of powers among the federal government and which should decide these matters, he said.
Before the Supreme Court’s decision, organizations and individuals could pull together evidence and submit it to the U.S. Department of Justice, which then would take the investigation further and be at the center of any litigation.
By eliminating DOJ from the preclearance equation, Delaney said individuals and organizations don’t have the resources to pull together the research and preparation needed for litigation. Organizations like the NAACP may have to be called on to fill that void without DOJ involved, he said.
Delaney is not optimistic that Congress can address the voting rights issue given that members are wrapped up in such fundamental issues like last week’s farm bill and the budgetary process. “I don’t anticipate there will be partisans on both sides who will leap forward to fix this quickly. It’s yet one more area for disagreement, which is unfortunately when talking about a core fundamental right of participation in democracy.”
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