Monday 1 July 2013

A Busy Week at the Supreme Court (Part II): The 1965 Voting Rights Act

Continuing her look at the cases handed down by the US Supreme Court this week, Emma Long turns her attention to Shelby County v. Holder, decided last week, the day after Fisher v. Texas (see previous post).

The Case
Shelby Co. v. Holder has garnered relatively little attention in the UK media but has been hugely controversial in the US.  The case involved a challenge to key sections of the 1965 Voting Rights Act, a law widely regarded as one of the crowning achievements of the movement for civil rights in the US in the 1960s.  The challenge focussed on the “preclearance requirement” which requires that certain voting districts held to have a history of racial discrimination in voting must obtain advance permission to change any voting regulations, from moving a polling station to altering the boundaries of voting districts.  The requirement was drawn up in response to tactics used to discriminate against voters which made it almost impossible for individuals to bring successful legal challenges.  Under the law, the burden was on voting districts to show that a proposed change would not result in a discriminatory effect on minority voters.  Most would agree that the law has been remarkably successful in meeting its objectives and reducing discrimination in voting.  But here lies the crux of the argument.  Supporters of the law argued that while there has been progress there is still a clear need for protection for minority voters in certain areas of the country. This was recognised by Congress, they argued, when the key provisions of the Voting Rights Act were renewed by Congress in 2006 with votes of 390:33 in the House and 98:0 in the Senate.  Opponents, meanwhile, argued that the provisions were outdated, that the election of President Obama indicates that any historic discrimination has been overcome, and that the law’s very success now means it is unnecessary.

The Court
The Supreme Court, with a narrow 5:4 majority, struck down the preclearance requirement as it currently operates.  In doing so the majority made two major arguments.  The first was that the determination of which voting districts were required to obtain preclearance no longer reflected the current experience of voting discrimination.  Repeatedly the majority opinion, written by Chief Justice John Roberts, argued that in 2006 Congress had not changed the formula for which states were covered by the Act despite the fact that “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.”  For Court watchers this is not surprising.  Four years ago the Court warned Congress that the law was vulnerable on these grounds, arguing that Congress’ 2006 renewal of the Act had not looked closely enough at the situation in covered districts (a warning Roberts repeatedly returned to in his opinion).  Little had changed on the Court in the interim to suggest the outcome would be different and Congress has proved unwilling or unable to revisit the issue of preclearance. 

The majority also looked to voting patterns to suggest that the Voting Rights Act had achieved its aims.  Voter registration and turnout in most of the covered voting districts showed only limited differences between black and white voters, they argued, and “minority candidates hold office at unprecedented levels”.  Equally, they noted, in some cases minority voter registration and turnout is higher in covered districts than in uncovered ones, reinforcing the argument that the Voting Rights Act now unfairly penalises voting districts for past, not recent or current, offences.

The second major argument made by the majority emphasised the federalism element of the case: the Voting Rights Act treats states differently.  “Not only do States retain sovereignty under the Constitution, there is also a fundamental principle of equal sovereignty among the States,” wrote Roberts, a right violated by the Act.  Again, this concern with the rights of states is not surprising to Court watchers: the theme has been a significant part of many key cases in recent years.  Where the majority and the dissent differ is over the significance of this differential treatment.  For the dissenters, the evidence amassed by Congress in 2006 more than justified continuation of the restrictions on covered states.  For the majority, however, such a burden on the rights of states requires a clear, precise relationship between the methods used and the aims to be achieved: because the provisions were outdated this relationship no longer existed and the burden could no longer be justified.

The strength of the dissenters’ feelings in this case was reflected in Justice Ruth Bader Ginsburg, the dissent’s author, reading sections of the opinion from the bench.  The dissent rested on two key arguments.  First, Congress took a considerable amount of time and effort to investigate the situation in the US when it reauthorized the Act in 2006: since Congress determined there was a need for the provisions to continue, it was not the job of the Court to determine otherwise.  The majority, therefore, were substituting their judgment for that of Congress, based on far less evidence: “the Court’s opinion can hardly be described as an exemplar of restrained and moderate decisionmaking.  Quite the opposite.  Hubris is a fit word for today’s demolition of the VRA,” blasted Ginsburg.

Second, the evidence amassed by Congress revealed not only the achievements of the Act but a continuation of discriminatory voting practices.  In a lengthy section, Ginsburg recounted examples of activities from relatively recently that had been prevented by the Act to reinforce the broader point that progress does not mean the problem has been solved.  Yes, the Act imposed burdens on states, the dissenters acknowledged, but those burdens were very clearly related to a current need.  

NAACP rally to protect the Voting Rights Act

The Significance
Symbolically, the significance of striking down of sections of the Voting Rights Act is huge.  One of two landmark pieces of legislation of the Civil Rights era (the other is the 1964 Civil Rights Act), the Voting Rights Act has stood as clear statement about the need for equality in voting for nearly half a century.  Whether you are a supporter of the decision arguing this shows that the nation has moved past its history of racial discrimination or a critic arguing that this strikes out at the very heart of protection for voters, the symbolism is difficult to miss.

But there are practical consequences too.  Some states will be able to introduce controversial voting regulations, such as voter ID laws, that have been mired in legal proceedings in recent months.  Indeed, some states have already moved to do so.  While the consequences for voters remain unclear, many fear these changes will lead only to disenfranchisement of minority voters.

Legal challenges to these and other election practices can still be brought but they will now be lengthy and costly and will require individuals to bring challenges on a case-by-case basis, the situation that existed before 1965.  Equally, the burden of proof will now be on challengers to show that discrimination will result or has resulted from the new policies.  And, as a number of commentators in recent days have pointed out, if an election takes place under challenged conditions but is later found to have been discriminatory, how is the damage to voters repaired?

The Court’s decision now places in the hands of Congress the responsibility to define which districts will and will not be subject to the requirement.  This may galvanise Congress into action, altering the coverage requirements and thus reinstating the provisions the Court struck down.  Given the current gridlock in Congress, however, it seems unlikely that it will take action, meaning the preclearance requirement, for the time being, has been nullified.

This particular issue is worth commenting on since it raises questions about the role of the Court in the American political system.  Some critics have argued that the damage of this decision is that Congress will not take up the issue of preclearance, partly because it is too divided to do so.  The implication is that it was the responsibility of the Court to take this into consideration, and that the Court’s failure to do so makes it complicit in Congress’ inaction.  But is that true?  Is it the Court’s responsibility to step in when the legislature will not?  Therein lies a huge controversy about the “proper” role of the Court that has existed as long as the Court itself.  In the 1960s, during the second half of the Warren Court, the Court acted as if it was responsible for addressing the failings of legislatures, handing down major decisions in the realm of civil rights, civil liberties, criminal procedure, and others.  But these actions left a controversial legacy and the Court has not taken such a broad view of its own powers since.  In the debates that will follow in the coming weeks and months, it’s a question that should be considered.

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