The Supreme Court’s two major end-of-term rulings on the Voting Rights Act and same-sex marriage are a split decision for civil rights.
In its decision to gut the Voting Rights Act, the court’s majority ruled that Section 4 of the historic law was no longer valid because the discriminatory practices that had once justified its extraordinary powers to intervene selectively in the voting laws of some states have disappeared. Chief Justice Roberts cited voting data from some of the covered jurisdictions indicating that African American turnout is higher there than it is nationwide as an example that the some of the law’s provisions lack modern relevance.
What the court’s majority failed to recognize is that while whole classes of voters are no longer attacked by a fire hose or a dog, there is now a systematic, nationwide effort to harass and disqualify African American and Hispanic voters. If anything, the effort to restrict voting rights has grown more widespread, moving outside the original covered jurisdictions of the Voting Rights Act, which were mostly in the Old South, and following minority voters as they have settled into new states. Since 2011, 41 states have considered or passed legislation restricting the right to vote. This isn’t exactly the welcome wagon of democracy. Consequently, the need for the protection of voting rights has become much stronger as there is currently a systematic, nation-wide Republican effort to disenfranchise voters who have overwhelmingly supported Democrats.
The majority opinion kicks the issue back to Congress to update the Voting Rights Act and presumably decide which jurisdictions qualify for oversight. This is sly (Congress has shown no appetite to revisit the jurisdictions and Chief Justice Roberts has a long-running feud with the overall law) but still interesting. Congressional Republicans need to be careful. So far, they have been able to let Republican-led state legislatures do the dirty work of creating new impediments to voting rights. But now, the spotlight is on them, and the more crafty are a little circumspect. Many Republicans said they couldn’t comment on the decision until they read it, which means thoughtfulness in most geographies but often deviousness in Washington. Eric Cantor said he would work to strengthen the Voting Rights Act, and perhaps he means it. Both Cantor and his more cautious colleagues recognize that, unlike them, justices don’t have to face voters.
In its decision to strike down the Defense of Marriage Act, the court ruled that same-sex married couples in marriage-equality states are eligible for federal benefits, while leaving millions of other gay couples in non-marriage equality states in limbo. All in all, given the court’s conservative bent, perhaps the best decision we could have expected.