The Supreme Court just struck down a key section of the Voting Rights Act, ruling that the requirement singling out many states across the south for prior federal approval for voting procedure changes is unconstitutional.
The substance of the decision, which split the court five to four, will be widely picked over, so I wanted to focus instead on the practical consequences of it going forward. Voting rights advocates expect the decision to give a major boost to efforts by conservatives across the country to pass laws restricting access to the franchise — which Dems and voting rights advocates refer to as the “war on voting.”
The Court ruled that when Congress reauthorized the law in 2006 — which was done by overwhelming majorities and signed by President George W. Bush — that its requirement designating which states need “pre-clearance” for changes — the pre-clearance requirement is set out in Section 5 — was based on an outdated formula.
But the preclearance requirement, among many other things, helped stall two state-level initiatives designed to restrict voting during the 2012 cycle, and to mitigate a third, according to Wendy Weiser, a voting rights attorney for the Brennan Center for Justice. Weiser notes that Section Five blocked a Texas voter ID law; blocked changes to early voting in Florida that might have disproportionately impacted African Americans; and caused South Carolina to “dramatically mitigate” a voter ID law that ended up far less “harsh and restrictive” than its original provision.
“Voters have lost one of their most potent tools to fight back against discriminatory voting laws and efforts to suppress votes,” Weiser says. “This was one of the primary bulwarks against discriminatory voting laws. It was by far our most effective tool to stop voting discrimination.”
The Brennan Center believes that the striking down of this protection will lead states to revisit voting restrictions that have been blocked, and will increase the odds that current pending restrictions will ultimately pass. The Brennan Center recently issued a report detailing a surprisingly large number of initiatives that could be revived or will more likely become law in states previously impacted by Section 5.
“If Section 5 is struck down, jurisdictions may seek to revive these and other previously-blocked election changes,” the Brennan report says. “We may see jurisdictions attempt to move forward with discriminatory voting changes that were abandoned, or never finally adopted, because the jurisdictions realized such changes would likely draw a Section Five objection.”
To be sure, the ruling does not leave voting rights advocates without any tools to continue the fight. As Josh Gerstein explained:
The ruling does not nullify the Voting Rights Act in its entirety. Citizens and the Justice Department still have the power to sue under the law in federal court to block practices that could make it harder for minority voters to vote or dilute their political power.
However, the high court’s decision effectively shifts the burden in such litigation in the so-called covered jurisdictions, requiring those bringing such cases to prove discriminatory intent or impact. Until Tuesday, the states and local communities covered by Section 5 had the obligation to prove that any changes would not harm minority voting rights or power.
But to voting rights advocates, the mere fact that the pre-clearance requirement invalidated initiatives restricting voting as recently as last year shows that the formula Congress used to determine the need for a burden of proof of non-discrimination to be placed on jurisdictions is not outdated at all.
In 2012, voting rights advocates had far more success than many anticipated in beating back various state level initiatives to restrict voting across the country. But as voting rights expert Rick Hasen recently explained, the battle to defeat such initiatives in the courts over the long term looks like an uphill one. Today’s news made that hill steeper.
UPDATE: Post edited to more accurately describe the SCOTUS ruling’s direct impact on the VRA.