Breaking: SCOTUS Partially Strikes Down the Voting Rights Act

 

In an interesting decision — typical of the Court’s recent split-the-baby approach — the  Supreme Court left the Voting Rights Act intact, but forced Congress to update it.

Section 5 of the VRA requires that certain “covered jurisdictions” have to get federal pre-clearance before making any changes to their voting laws (down to things like the locations of polling places). Section 4 of the Act contains a “coverage formula” that determines which jurisdictions are covered — basically 9 states and a handful of counties are covered and have been since the 1960s (with a slight tweak in the early 70s). 

In today’s decision in Shelby County v. Holder, the Court did not strike down Section 5, but did strike down Section 4.  So Congress can still force states or counties to pre-clear election law changes, but Congress first has to rewrite the coverage formula to reflect 2013, rather than 1965.

The Court’s reasoning is based on the VRA’s invasion of state sovereignty.  In the words of Justice Alito:

The Voting Rights Act sharply departs from these basic principles [of state sovereignty]. . . . States must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own, ….

While the 15th Amendment arguably authorizes Congress to infringe on state sovereignty to enforce voting rights, it is an extraordinary measure that must be justified by the facts. The burden is now on Congress to show through empirical data that voting rights are actually being suppressed, and where —

Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.”

It is encouraging to see the Court actually engaging with the constitutionality of congressional action rather than abdicating, a la Obamacare. 

There are 28 comments.

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  1. Profile Photo Inactive
    @BrentB67

    Thanks for the quick analysis. That is more interesting than the headlines elsewhere.

    Given the current performance of Congressional republicans I am confident they will draft a formulat that will infringe on the rights of their home states.

    • #1
  2. Profile Photo Contributor
    @MollieHemingway
    BrentB67: Thanks for the quick analysis. That is more interesting than the headlines elsewhere.

    And so much less hyperbolic! To hear it from the folks on Twitter, this was a dramatic action that destroyed the VRA and all civil rights.

    This write-up sounds so … sensible.

    • #2
  3. Profile Photo Inactive
    @BrentB67
    Mollie Hemingway, Ed.

    BrentB67: Thanks for the quick analysis. That is more interesting than the headlines elsewhere.

    And so much less hyperbolic! To hear it from the folks on Twitter, this was a dramatic action that destroyed the VRA and all civil rights.

    This write-up sounds so … sensible. · 3 minutes ago

    The write up is much more sensible than the decision, but the decision appears to be a step in the right direction.

    • #3
  4. Profile Photo Contributor
    @AdamFreedman

    Thanks Brent and Mollie.  The apocalyptic tone you hear in the media flows from Ginsburg’s dissent — an incoherent mess that starts with the proposition that the Court’s decision guarantees the VRA will be “dormant.” Which is nonsense: if there are voting rights abuses, Congress can simply revise the coverage formula.  How odd that the advocates of big government somehow think that Congress is incapable of making findings of fact and then applying those findings to write a new law. 

    I do think the decision is a step in the right direction; although I agree with Justice Thomas that the Court’s reasoning should have compelled it to strike down section 5 as well.  

    • #4
  5. Profile Photo Member
    @TimH

    Dang!  

    I was overjoyed, because I had thought they’d struck down Section 5.  Section 5 is an abomination to the Constitution.  It doesn’t cover Tennessee, so it doesn’t directly affect me, but the principle of the thing makes me fume.

    So now I’m stewing again.  How long will we have to live with this being brought up ever x years for renewal, being demagogued every time, with opponents being called racist?  I thought we had finally managed to break free from that cycle.

    Nuts, nuts, nuts…

    • #5
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    @Dudley

    Ginsberg dissent amounts to the following:

    Because the VRA worked we need to keep it.

     Stated another way: because casts work in healing broken limbs they should be left in place forever.

    • #6
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    @KCMulville

    Not being a lawyer, I certainly appreciate Adam’s explanation.

    It seems to be a reasonable accommodation of law. It’s a recognition that there’s more than one interest or virtue at stake (the right of a citizen to vote versus the right of a state to set reasonable rules for administering the vote). Of course, we’d like to believe that both rights can co-exist, but we’ve had experience that there were times when the states rules unfairly impinged on a citizen’s ability to vote. The remedy is not to abandon one virtue or the other, but to manage them properly.

    • #7
  8. Profile Photo Inactive
    @BrentB67

    Adam, does this mean that the existing formula is struck down and thus there is no formula in place unless and until Congress creates a new one?

    • #8
  9. Profile Photo Contributor
    @AdamFreedman
    BrentB67: Adam, does this mean that the existing formula is struck down and thus there is no formula in place unless and until Congress creates a new one? · 11 minutes ago

    That’s my understanding.  Effectively, there are no “covered jurisdictions” any more, until Congress comes up with a new coverage formula. 

    • #9
  10. Profile Photo Contributor
    @Majestyk
    Adam Freedman

    BrentB67: Adam, does this mean that the existing formula is struck down and thus there is no formula in place unless and until Congress creates a new one? · 11 minutes ago

    That’s my understanding.  Effectively, there are no “covered jurisdictions” any more, until Congress comes up with a new coverage formula.  · 1 minute ago

    The House will blissfully ignore this… effectively mooting the law.  Good job by Chief Justice Roberts of splitting the baby but getting everything that conservatives wanted (in reality.)

    • #10
  11. Profile Photo Inactive
    @CommodoreBTC

    While I think it’s stupid to use 1965 circumstances to designate areas, Congress has a right to do all sorts of stupid things.

    Why is it unconstitutional in this instance?

    • #11
  12. Profile Photo Inactive
    @CommodoreBTC
    Dudley: Ginsberg dissent amounts to the following:

    Because the VRA worked we need to keep it.

     Stated another way: because casts work in healing broken limbs they should be left in place forever. · 36 minutes ago

    To go with your analogy,  why shouldn’t Congress decide when the cast is no longer necessary rather than SCOTUS?

    • #12
  13. Profile Photo Contributor
    @AdamFreedman
    Butters: While I think it’s stupid to use 1965 circumstances to designate areas, Congress has a right to do all sorts of stupid things.

    Why is it unconstitutional in this instance? · in 0 minutes

    In the words of the majority, because it represents an “extraordinary departure from the traditional course of relations between the States and the Federal Government.”  The Constitution leaves states with autonomy to regulate elections and draw electoral districts.  The Feds can intervene under the 15th amendment to prevent the right to vote being “denied or abridged.”  But that doesn’t mean the Court has to accept Congress’s determination that the franchise is being denied in exactly the same places in 2013 as in 1965. 

    In effect, the Court seems to be establishing a kind of strict or intermediate scrutiny for federal laws that invade state sovereignty.   A step in the right direction, in my view. 

    • #13
  14. Profile Photo Inactive
    @CommodoreBTC

    thanks Adam, makes sense

    I’m always wary when it looks as if SCOTUS is attempting to replace Congress’ bad judgement with their own.

    • #14
  15. Profile Photo Member
    @JosephEagar

    Finally, the Court is moving against the de facto racial segregation in voting districts created by the Voting Rights Act.

    • #15
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    @UmbraFractus
    Butters: While I think it’s stupid to use 1965 circumstances to designate areas, Congress has a right to do all sorts of stupid things.

    Why is it unconstitutional in this instance? · 27 minutes ago

    Section 2 of the Fifteenth Amendment:  The Congress shall have power to enforce this article by appropriate legislation.

    Punishing locales in 2013 for crimes committed in 1965 without bothering to check if the situation has changed is inappropriate.

    I’m okay with this ruling. Congress was right to act in 1965, and should have the power to act in the future if needed. But to argue, as the statists are, that nothing has changed in 48 years is ludicrous.

    • #16
  17. Profile Photo Inactive
    @BrentB67
    Majestyk

    Adam Freedman

    BrentB67: Adam, does this mean that the existing formula is struck down and thus there is no formula in place unless and until Congress creates a new one? · 11 minutes ago

    That’s my understanding.  Effectively, there are no “covered jurisdictions” any more, until Congress comes up with a new coverage formula.  · 1 minute ago

    The House will blissfully ignore this… effectively mooting the law.  Good job by Chief Justice Roberts of splitting the baby but getting everything that conservatives wanted (in reality.) · 55 minutes ago

    I think you are far more optimistic than reality.

    This is the same group of republicans that think the path to the White House is paved with 10 million + new democratic voters. This includes the patron saint of the party Cong. Ryan.

    Ryan and Boehner would probably vote to impose voting restrictions in their own districts if a consultant told them to do so.

    • #17
  18. Profile Photo Member
    @TimH
    Dudley: Ginsberg dissent amounts to the following:

    Because the VRA worked we need to keep it.

     Stated another way: because casts work in healing broken limbs they should be left in place forever.

    I finally remembered what this reminds me of:  the cargo cults!  Physicist Richard Feynman adapted the idea in a famous commencement speech at Caltech in 1974, “Cargo Cult Science.”  

    I think that the minority on the Supreme Court, and Section 5’s political supporters, are practicing cargo cult law.

    • #18
  19. Profile Photo Inactive
    @Mendel

    While I welcome the outcome of this decision, I am confused as to how this was a judicial, rather than a legislative, decision.

    The main question addressed would seem to be whether Congress has the power to determine which states are subject to pre-clearance, or whether it does not.  The Supreme Court seems to be saying Congress only has that power if it does a good job exercising it. 

    But deciding whether or not a bill is well-reasoned or not is not up to a Court to decide.  Either the 15th Amendment gives Congress the right to set a “formula,” or it doesn’t.  What am I missing?

    • #19
  20. Profile Photo Inactive
    @BrentB67
    Palaeologus

    BrentB67

    Majestyk

    Adam Freedman

    BrentB67: Adam, does this mean that the existing formula is struck down and thus there is no formula in place unless and until Congress creates a new one? · 11 minutes ago

    That’s my understanding.  Effectively, there are no “covered jurisdictions” any more, until Congress comes up with a new coverage formula.  · 1 minute ago

    The House will blissfully ignore this… effectively mooting the law.  Good job by Chief Justice Roberts of splitting the baby but getting everything that conservatives wanted (in reality.) · 55 minutes ago

    I think you are far more optimistic than reality.

    This is the same group of republicans that think the path to the White House is paved with 10 million + new democratic voters. This includes the patron saint of the party Cong. Ryan.

    Ryan … would probably vote to impose voting restrictions in their own districts if a consultant told them to do so. · 1 hour ago

    No doubt.

    As we all know, the first thing out of any political consultant’s mouth is “Go after Medicare.” · 2 hours ago

    When the consultants said “make 10 million+ new democrat voters from ordinary criminals” Paul Ryan saluted smartly and found a microphone.

    • #20
  21. Profile Photo Inactive
    @Leigh
    BrentB67

    Palaeologus

    No doubt.

    As we all know, the first thing out of any political consultant’s mouth is “Go after Medicare.” · 2 hours ago

    When the consultants said “make 10 million+ new democrat voters from ordinary criminals” Paul Ryan saluted smartly and found a microphone. · 0 minutes ago

    Ryan’s position on immigration has been on his website forever; it’s not a product of post-election panic, and hardly makes him either inconsistent or unprincipled.

    • #21
  22. Profile Photo Inactive
    @BrentB67
    Leigh

    BrentB67

    Palaeologus

    No doubt.

    As we all know, the first thing out of any political consultant’s mouth is “Go after Medicare.” · 2 hours ago

    When the consultants said “make 10 million+ new democrat voters from ordinary criminals” Paul Ryan saluted smartly and found a microphone. · 0 minutes ago

    Ryan’s position on immigration has been on his website forever; it’s not a product of post-election panic, and hardly makes him either inconsistent or unprincipled. · 27 minutes ago

    I agree. He has consistently supported a path to citizenship for criminals and can’t wait to vote for it in the House.

    • #22
  23. Profile Photo Moderator
    @JamesOfEngland
    Mendel: While I welcome the outcome of this decision, I am confused as to how this was a judicial, rather than a legislative, decision.

    The main question addressed would seem to be whether Congress has the power to determine which states are subject to pre-clearance, or whether it does not.  The Supreme Court seems to be saying Congress only has that power if it does a good job exercising it. 

    But deciding whether or not a bill is well-reasoned or not is not up to a Court to decide.  Either the 15th Amendment gives Congress the right to set a “formula,” or it doesn’t.  What am I missing? ·

    Congress has the right to pass legislation to prevent states from preventing blacks from voting (section 5). Congress does not have the power to regulate elections in states where minorities are not prevented from voting (section 4). Many cases feature this sort of “Congress has the power to do x, but this statute does x + y, and Congress cannot do y” analysis.

    • #23
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    @SpinozaCarWash

    “The Congress shall have power to enforce this article by appropriate legislation.”

    I see no warrant in the text for the Court to put the burden “on Congress to show through empirical data that voting rights are actually being suppressed.”

    • #24
  25. Profile Photo Moderator
    @JamesOfEngland
    Gouverneur Morris: “The Congress shall have power to enforce this article by appropriate legislation.”

    I see no warrant in the text for the Court to put the burden “on Congress to show through empirical data that voting rights are actually being suppressed.” · 27 minutes ago

    Is it your view that Congress should have the power to do anything it likes so long as it claims that the action has a Constitutional end? While I agree that the 15th Amendment contains no text outlining this, it is a general principle of law that when there is a dispute over whether the government may do something, the government has to produce evidence to suggest that it can.

    • #25
  26. Profile Photo Inactive
    @Leigh

    The states have the authority to set their individual voting laws, and the federal government has no right to interfere with them, correct?

    Unless the state is violating the 15th amendment, at which point the federal government has the right and duty to uphold the Constitution.

    What the Court found here is that, since there is no longer any violation of the 15th amendment, the federal government no longer has a constitutional reason to interfere, and is therefore unconstitutionally intruding into states’ territory.

    Basically, congressional interference in state voting laws is unconstitutional unless the states are violating the constitution.  But the states aren’t.  Is that a fair summary?

    • #26
  27. Profile Photo Moderator
    @JamesOfEngland
    Leigh:….

    Basically, congressional interference in state voting laws is unconstitutional unless the states are violating the constitution.  But the states aren’t.  Is that a fair summary? · 0 minutes ago

    Sort of. They didn’t go quite that far on the italicized sentence; there may still be areas where laws are required. The VRA was aimed at groups that lacked discrimination and the Feds can’t do that. If Congress decides to investigate, find some problems, and resolve those problems, they can use the VRA to do that, though. Holder can revive it through lawsuits, too, so long as he picks specific spots with demonstrable bias.

    • #27
  28. Profile Photo Inactive
    @Palaeologus
    BrentB67

    Majestyk

    Adam Freedman

    BrentB67: Adam, does this mean that the existing formula is struck down and thus there is no formula in place unless and until Congress creates a new one? · 11 minutes ago

    That’s my understanding.  Effectively, there are no “covered jurisdictions” any more, until Congress comes up with a new coverage formula.  · 1 minute ago

    The House will blissfully ignore this… effectively mooting the law.  Good job by Chief Justice Roberts of splitting the baby but getting everything that conservatives wanted (in reality.) · 55 minutes ago

    I think you are far more optimistic than reality.

    This is the same group of republicans that think the path to the White House is paved with 10 million + new democratic voters. This includes the patron saint of the party Cong. Ryan.

    Ryan … would probably vote to impose voting restrictions in their own districts if a consultant told them to do so. · 1 hour ago

    No doubt.

    As we all know, the first thing out of any political consultant’s mouth is “Go after Medicare.”

    • #28

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