Supreme Court alters the Voting Rights Act

Despite what you may have gathered from some of the overwrought headlines I've seen on social media, the Supreme Court did not invalidate the Voting Rights Act today. But it did make some key changes to the way the Act currently functions. Here's Amy Howe of the SCOTUS Blog, explaining the ruling in plain English (as opposed to legal speak, which is kind of a different language):

Today the Court issued its decision in Shelby County v. Holder, the challenge to the constitutionality of the preclearance provisions of the Voting Rights Act. That portion of the Act was designed to prevent discrimination in voting by requiring all state and local governments with a history of voting discrimination to get approval from the federal government before making any changes to their voting laws or procedures, no matter how small. In an opinion by Chief Justice John Roberts that was joined by Justices Scalia, Kennedy, Thomas, and Alito, the Court did not invalidate the principle that preclearance can be required.

But much more importantly, it held that Section 4 of the Voting Rights Act, which sets out the formula that is used to determine which state and local governments must comply with Section 5’s preapproval requirement, is unconstitutional and can no longer be used. Thus, although Section 5 survives, it will have no actual effect unless and until Congress can enact a new statute to determine who should be covered by it.

Basically, this is the court saying that the parts of the country that needed preclearance applied to them in 1964 might not be the same parts of the country that need it today, and they've kicked the law back to Congress to decide how to deal with that.

In theory, this could be a good thing. Obviously, racism still exists. But it's also reasonable to assume that the practical application of racism on voting rights might look different than it did half a century ago. Some places that had big issues with this in the 20th century might not today, and vice versa.

The downside, though, is the reality that the Supreme Court just handed the ball to Congress — that is to say, it's now the responsibility of a spectacularly fractured institution that can't seem to get even basic budgetary measures passed, let alone something as inevitably controversial as new rules for Voting Rights Act preclearance. And, without that, the whole part of the VRA that is supposed to prevent discrimination in high-risk areas is dormant. It just sits there — a nice idea, and one the Supreme Court says they technically agree with, but now completely lacking any power.

It's not the same as completely wiping out the VRA, but it does change the way the VRA works (at least until Congress acts) in ways that make it harder to prevent voter discrimination. People can still challenge local changes to voting districts or rules under the VRA, but now it's their job to prove that the VRA has been violated — rather than the state or district's job to prove that it has not.

• SCOTUS Blog's archive of posts related to this case
• The actual decision — in Legalese — from the Supreme Court


  1. The Robert’s court is an invalid body.  The whole court should be impeached and new jurists selected.  I’ve had enough.

    1. I don’t think you quite understand how that works, or doesn’t, because the likelihood of that happening to any one judge on SCOTUS is so small as to not be worthy of consideration.  While I may not like or agree with some of the court’s rulings or reasoning, I can follow the process they went through and understand their ruling.  Your above statement is so simplistic and ill-expressed that it pretty clearly shows that you are incapable of doing so.

      1. I don’t think you understand. America does not have faith in this court and rejects it rulings.

        I see how it works.  When the constitution speaks of the rights of the people the supreme court nullifies the constitution but when the constitution speaks of the authority of the state and business interests the court overreaches and makes that power unquestionable and irrevocable.

        No, you do not understand at all.

        1. Your statements are overly broad and seem to be as uninformed as the constitutional originalists.  Just because you don’t agree with something doesn’t make a ruling invalid, nor do those rulings make the supreme court an invalid court, as you assert in your first comment.
          You’re speaking like a grumpy adolescent and pouting.  It is clear, based on your lacking articulation and backing of your argument, that you know little to nothing about the law or constitutional law.  Do yourself a favor and quit before you’re further behind than you are now.

          Should you not be off in the woods practicing your shooting or something with your fellow libertarians anyway?

  2. As an Ohioan, where we have seen polling place availability shenanegans from our governor in order to disenfranchise minorities, I’d be happy to see the Act be amended to require preclearance for ANY change, ANYWHERE.

    1. How about anywhere that
       – Electronic voting machines can’t be audited.
       – Districts aren’t provided enough machines to meet demand.
       – Voters are required to provide photo ID.
       – Voters are required to provide photo ID, even though the law says they aren’t.
       – Polling places are open more hours in districts that favor the party in power.

      I’m sure I missed a few tricks, those are just the ones that spring to mind.

      1. Yup. This is why I’m torn on the ruling. If I actually believed Congress would do something about it, I think it could be time to re-frame which states and counties get the most scrutiny. Because there’s inappropriate  racist crap going on all over. 

        1. As a person, I dislike the ruling because it will have a substantial negative effect on equal access to voting, particularly in the Birmingham, Al area, where I live, and where politicians have been making every effort to disenfranchise minority voters in lesser ways.  This opens the flood gates for manipulation of access to voting that, while it may improve life for me since I’m white and on my way to being middle to upper middle class, is abhorrent for the discriminatory effect it will have.

          However, you must keep in mind that the courts should, and generally do, observe the difference in purpose and power between the judicial and legislative branches.  It is not the job of the courts to create legislation, or to extend legislation that was created for a specific set of circumstances beyond the time or limited set of circumstances that it was created to address, regardless of the negative effect.  I disagree with the court’s decision in that, not having read the opinion yet, I believe that the circumstances the law intended to address are still in effect and the law should apply to mitigate the effect of those circumstances.  This fact non-withstanding  there have been many occasions wherein the court has ruled in a way that negatively affected a defendant or group of people because it was not within the purview of the court to rule the other way and, in effect, create or reinterpret so as to create law.  In doing this, the legislature and the public are reminded that it is the job of the legislature to create law and it has often spurred the legislature to address issues have had been lingering and half addressed by the courts.

          The fact that the legislature is not currently capable of doing anything is the fault of the people of the US and those people alone (even if I feel as if it is the fault of republican extremists, libertarians, and tea partiers for electing hard line representatives), and advocating for judicial activism is not an appropriate remedy.

      2. How about just ANYWHERE?  Why restrict the law arbitrarily to the known evils and tricks of today?

  3. “kicked the law back to Congress to decide how to deal with that.”

    Which, given our current congress, means that no decision will ever be made. And we’ll likely see a host of sweeping electoral “reforms” in those states formerly covered by Section 5 heading up to the 2016 elections that will set the voting rights movement back decades.Seems to me “overwrought” is appropriate in this context.

    1. To be fair, there’s a tiny, almost imperceptible, glimmer of hope here: the fact of the matter is that the last time the Voting Rights Act was renewed was in 2006, under a Republican Congress and Presidency, and it was very controversial even back then (especially the pre-clearance parts), but it still passed 98-0 in the Senate and 390-33 in the House. 

      Yes, you read that right: this is basically the only law in the last decade or so which has received more or less UNANIMOUS approval from both chambers of Congress. I didn’t think the US Senate could agree on the color of the sky 98-0. 

      It’s true that 2013 is not 2006, and that it’s probably much easier to just say “Yes, lets keep the VRA on the books” than it is to negotiate a whole new pre-clearance system. Still, though, many of the same congressmen and senators are still serving, and it is clearly a hugely popular law. The battle is not totally lost just yet.

      1. That also shows how dumb the majority holding is.  They said that Congress has the right to require pre-clearance and that it has been effective in the past.  However, despite Congress reviewing extensive studies on the matter and voting near unanimously back in 2006t, the majority decided that they knew Congress’ business better than Congress does.

  4. Congress will stonewall the hell out of this, basically making the VRA a toothless and unenforcable act.  It’s dead and just doesn’t know it.

  5. In principle, I agree with that part of the ruling, because I can name aprts of the country that need to be added to the VRA’s supervision, e.g. Wisconsin.

    1. I agree with that. For all the legitimate concern that people have over this ruling, I do think that it’s pretty arbitrary now that the lines were fixed in 1965 and haven’t changed since. Sure, most of the places are just as problematic as they were before, but some of them are not. And on the flip side places that weren’t problematic are now, and that’s not just in the South. Maybe this will be the kick in the pants that Congress needs to look at developing a comprehensive voting reform that would apply to all states. Probably not, of course, at least with this Congress. But maybe in the future.

      1. The lines have changed though.  Numerous areas have been removed from coverage because they got their shit together and stopped being racist.  At least institutionally racist in a way that triggers the VRA.

        You go before a panel of judges and show them you’ve met a number of conditions for the last ten years, and they take you off the list of areas covered by this section of the VRA.  

        Towns in California, New England, across the Midwest, they’ve all had no problems getting taken off the list, just by stopping their discriminatory actions.  The fact that virtually none of the south has been been terminated shows exactly why we still need the VRA.  Ten years, no discriminatory voting actions, that simple.  That’s all it takes and they continually fail to do it.

  6. Congress isn’t required to do a damn thing, and they’re committed to doing just that.

  7. Congress isn’t going to do anything, that much is clear, and this court decision does, effectively, gut the Voting Rights Act. This was a very surgical decision. It’s like yanking the battery out of car. You didn’t wreck the car…it still looks nice…but it’s not going to work anymore.

    This will have the essential effect of being the Citizens United decision for civil rights.

  8. Social conservatives created the original Jim Crow laws, and people who embraced this self-serving ideology of intolerance switched political parties as a RESULT of the Civil RIghts and Voting Acts legislation.

    Ever since Obama was elected POTUS in 2008, Republican legislators have not even attempted to hide their contempt for the democratic process. In true Machiavellian fashion, they have displayed a willingness to take an ideological dump on the fundamental principles of our democracy in order to further their political agenda.

    Since Republicans have not been able to garner significant percentages of the votes from key demographic sectors of the electorate, they have opted for a different approach — reduce the number of these citizens who are able to vote.

    To that end, expect to see Republican-controlled state legislatures to renew their efforts to create voter eligibility roadblocks in the form of “Jim Crow 2.0” laws.

  9. It’s possible that handing it back to Congress is actually a net win for the Good Guys… Congress will never be able to put a coherent change in place until the GOP is well and truly run out of town. Does this mean that, until that happens, the current standards for what states need approval will stay in place, or is it that there are no standards and I should just go shopping for a white hood now so I can be allowed to vote next November?

    1. It means that if states or counties change their rules now, there is no need for them to get preclearance because there is no pre-clearance factors anymore.  It means that if a county/state violates election law by a rulling or ordinance, they can only be retroatctively dealt with, instead of proactively denying the rule change / ordinance 

      1. Yup. There are still standards. But, until we have a new preclearance formula, those standards have to be applied retroactively … after people have already been discriminated against. 

      1. I’d like to give him the benefit of the doubt.  Perhaps he didn’t finish his thoughts?  As in, Congress not acting may finally put the last nail in the GOP coffin?

      2.  Yeah, what IronEdithKidd said – “Good Guys” meaning “people _not_ actively trying to steal voters’ rights and marginalize minorities”. I was hoping Congress not being able to act would leave things the way they are (where the states with historic problems would still need clearance) until new standards could be set, but from other comments it appears I may have been optimistic on that point… sigh.

  10. Of course, Congress ALREADY REAUTHORIZED this as recently as 2006, so both this article and Amy Howe’s points about giving it back to Congress are pretty much moot. In the author’s rush to “be objective” they just fallen into the bias towards fairness trap. 

    Racist-legislation-trending States don’t get a “do-over” just because X amount of time has passed. You don’t eliminate controls because racism has evolved, you adapt or add them. Even according to this article, the burden of proof falls on those being discriminated against rather than the State needing to adhere to standards… and that is a much greater burden.

    1. 2006 congress is a lot different than 2010 congress, especially with the tea party revolution.  I don’t think this even sees a bill , because Boener doesn’t want to get party embarrassed again like he has been recently when Cantor’s troops go off the script.  

      They have already made it clear that this is a states rights issue.   

  11. Item #36 in “The Handbook of Conservative Ideology”:
    – We shall strive to make voting in national elections a privilege for the privileged few

    The SCOTUS just made this goal a bit more attainable.

  12. And Texas is already going ahead with discriminatory acts.  The racist redistricting maps that were blocked last year for hurting Hispanic people, and the voter ID law that was also blocked for being discriminatory, both being implemented.  Took them all of two hours to start stripping brown people of their votes.

    1. Exactly, this isn’t a good thing by any measure:

      Critics say voter ID laws are racially discriminatory because a disproportionate number of African Americans lack the ID required to vote under these laws. The VRA’s preclearance provision blocked recent
      voter ID laws in Texas and South Carolina, but after today’s ruling, those states can make a second attempt to implement those laws.

      Rep. John Lewis (D-Ga.), a civil rights activist and Freedom Rider, said of today’s decision, “What the Supreme Court did was to put a dagger in the heart of the Voting Rights Act.”

  13. So how long did any of the majority justices spend waiting on line to vote in a presidential election (not counting December 2000)?

  14. I’m a little confused as to what constitutional grounds this ruling was based on. It seems the majority thought the coverage formula hadn’t been changed enough in 2006, but SCOTUS isn’t supposed to concern itself with outcomes as much as passing constitutional muster. These are originalists, after all!

  15. The simple fact is that there are outrageous voter rights abuses going on in states where the voter rights act does not apply. This ruling, though a bit to hopeful for my taste, at least allows for the possibility of getting rid of things like the Motor Voter laws many states have adopted.

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