A Supreme Court decision on June 25 has unraveled important civil rights gains of the past 50 years, activists and some legal experts are saying.
In the 5-4 ruling, the justices struck down Section 4 of the Voting Rights Act of 1965, the formula that decides which jurisdictions must submit election changes for federal review to prevent discrimination against voters, a mandate dictated by Section 5.
Added to the high court’s ruling the day before, which imposed tougher standards on universities that use race-based admissions policies to boost diversity, the ruling on Tuesday reflects a disheartening trend, observers said.
“This marks the beginning of a pattern of retrenchment that will erode many hard-fought civil rights gains,” said Jose Anderson, professor of law at the University of Baltimore’s School of Law. “The conservative wing of the court seems anxious to allow local governments to abandon racial progress sooner rather than later.”
The case, Shelby County v. Eric Holder, raised the controversial issues of race and federalism. In 2010, Shelby County, a largely White suburb of Birmingham, Ala., filed suit asking for Sections 4 and 5 of the Voting Rights Act to be declared unconstitutional. The law usurped the authority of the states, undermined the equal sovereignty that states are supposed to share and is based on an outdated formula, the plaintiff argued.
Shelby’s “arguments have a good deal of force,” said Chief Justice John Roberts, who wrote the majority opinion.
Joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, Roberts voted to uphold Section 5, acknowledging that discrimination at the ballot box still exists, but invalidated Section 4.
“Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. And voter registration and turnout numbers in the covered States have risen dramatically in the years since,” Roberts wrote.
He later added, "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 the current conditions.”
But the Court’s decision’s renders Section 5—the very mechanism that made all the positive changes possible—inoperable, experts said.
“They’ve taken a lot of the teeth out of the Voting Rights Act, because to some extent, the decision guts the preclearance part of Section 5,” said A. Dwight Pettit, a well-known Baltimore lawyer who has waged civil rights battles in litigation in federal courts.
Thus, the decision undermines the Obama administration’s efforts to combat the very real attempts to suppress voters’ rights by purging of voter rolls, redistricting, imposing onerous restrictions and other means.
Attorney General Eric Holder echoed the president’s disappointment in the court’s ruling, and he refuted the decision’s underlying suggestion of a post-racial America. Holder also warned the Justice Department would be on the lookout for states that would seek to abrogate citizens’ voting rights.
“Let me be very clear: we will not hesitate to take swift enforcement action – using every legal tool that remains available to us – against any jurisdiction that seeks to take advantage of the Supreme Court’s ruling by hindering eligible citizens’ full and free exercise of the franchise,” he said in a press conference June 25.
Despite that reassurance, the high court’s decision means that the burden of blocking discriminatory election practices falls onto minority citizens, many of whom lack the resources and time for such complicated endeavors.
"Minority voters in places with a record of discrimination are now at greater risk of being disenfranchised than they have been in decades,” said Jon Greenbaum, chief counsel of the Lawyers' Committee for Civil Rights Under Law, which represented an intervenor in the case. “Jurisdictions will be able to enact policies which prevent minorities from voting, and the only recourse these citizens will have will be expensive and time-consuming litigation."
The only hope rests on Congress, which can recalibrate the Section 4 formula. But that hope could prove futile, given Congress’ past and current track record, observers said.
“Protecting voting rights is too important to leave to the whims of the political tides,” said Anderson, the Baltimore law professor.
“In 2009 the Supreme Court issued a decision on the Voting Rights Act and told Congress it had to do something to update the formula. Four years went by; Congress didn’t do anything,” said Jessica Levinson, a professor at Loyola Law School. “The Court is, once again, asking Congress to do something [but] if history is any indication, Congress will fail to act and that failure could seal Section 5's fate once and for all. This is a story of Congress' inaction."
But civil rights groups, the Congressional Black Caucus and others say though the court’s decision forces them to re-fight battles they’ve already fought, they will direct their energies toward forcing Congress into action.
“We’re disappointed but we’re going to have to take these decisions as the fuel to fight the good fight,” said Pettit. “We can’t afford to sink into despair.”