Supreme Court opens the door for discrimination

In theory, the Supreme Court's evisceration of the Voting Rights Act sounds perfectly reasonable, even restrained. The majority opinion, written by Chief Justice John Roberts, does not eliminate the possibility that the government could require some jurisdictions to get pre-clearance from the federal government for changes to their voting systems to make sure they are not discriminatory against minorities. Rather, it merely holds that the criteria for determining which jurisdictions are covered, established in 1965, are no longer valid in a very changed world, and if Congress wants to continue the pre-clearance process, it needs to update its formula for inclusion.

But here's what it means in practice: The court is substituting its judgment for the nearly unanimous opinion of the Republican-controlled Congress and Republican president who re-authorized the Voting Rights Act in 2006 for a 25-year extension. It was their conclusion at the time that no matter how many years had passed since the initial decision about which states and counties to include in the act, the risk of disenfranchisement in those particular jurisdictions was still sufficient to warrant extra scrutiny. In so doing, the court ignores very real efforts to restrict voting in discriminatory ways and discounts the deterrent effect of the pre-clearance process. The result is almost certain to be an explosion of efforts in previously covered jurisdictions to restrict minorities' access to the ballot and their representation at all levels of government.

Chief Justice Roberts is correct in noting that the pre-clearance system amounts to an extraordinary departure from the normal relationship between the federal government and the states, in that the federal government does not typically get the chance to review state legislation before the fact, and it does not typically treat any one state differently from another. Justice Roberts cited the court's initial rationale in upholding the Civil Rights Act nearly five decades ago — that a century of racial discrimination in voting warranted an extraordinary response — but he and the other four justices in the majority err in their conclusion that circumstances today do not require so stringent a law.

The court's majority cites statistics comparing the disparity in voter registration by race in 1965 with the figures Congress considered in 2006 when it last reauthorized the act. In all six states subject to original pre-clearance requirements, the gap between white and black registration had narrowed significantly, and in some cases had been eliminated. Moreover, the court noted, in the first decade of the act, the attorney general objected to 14.2 percent of the proposed voting changes in the pre-clearance states but only 0.6 percent in the decade before the act was last reauthorized. That progress, Justice Roberts writes, is no doubt in large measure because of the Voting Rights Act.

The majority's mistake, though, is in assuming that progress to be so durable that it would survive the end of pre-clearance. It is, as Justice Ruth Bader Ginsburg puts it in her dissent, "like throwing away your umbrella in a rainstorm because you're not getting wet." It is true that voters are not subject to literacy or character tests anymore and have not been for many years. But those forms of discrimination have been replaced by others. Voter ID laws are the new poll tests, and gerrymandered districts or decisions by cities to annex land or adopt at-large elections all too often have the effect of minimalizing minority representation. Whether the goal is now partisan advantage or racial discrimination, the effect is the same.

And the record is clear that the pre-clearance law has prevented the covered states and counties from enacting policies that would have disenfranchised minority voters. In the last election alone, pre-clearance stopped damaging laws from going into effect in Florida, Texas and South Carolina. According to the NAACP's legal defense fund, it has stoped more than 1,000 discriminatory voting changes from taking effect in the last 25 years.

The majority's objections to the formula by which inclusion in the pre-clearance system is determined are theoretical — if the formula is old, it must be no good. Congress, on the other hand, documented scores of examples of blatant attempts to suppress or dilute minority votes during the 25 years before the 2006 reauthorization. The House and Senate held nearly two dozen hearings and amassed a 15,000-page record in making their determination that the states subject to pre-clearance should remain so because "intentional racial discrimination" in those jurisdictions remains "serious and widespread." The court's decision substitutes its judgment for Congress' in a matter that cuts to the core of our principles of political equality, and that is judicial activism at its worst.

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