In the blockbuster from the Supreme Court today, Chief Justice John Roberts, writing for the 5 to 4 majority, found that Section 4 of the Voting Rights Act is unconstitutional. However, the opinion falls short of conservatives hopes in that it does not affect the most contentious part of the Voting Rights Act, Section 5, which requires certain states and jurisdictions to obtain pre-clearance from the Justice Department in order to change voting rules. In essence, the court found that the formulas and data used to determine the covered states subject to pre-clearance are out of date and therefore cannot be used.
The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command. The Amendment is not designed to punish for the past; its purpose is to ensure a better future. See Rice v. Cayetano, 528 U. S. 495, 512 (2000) (“Consistent with the design of the Constitution, the [Fifteenth] Amendment is cast in fundamental terms, terms transcending the particular controversy which was the immediate impetus for its enactment.”). To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past. We made that clear in Northwest Austin, and we make it clear again today. . . .
Our decision in no way affects the permanent, nation-wide ban on racial discrimination in voting found in §2. We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” . . . 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 current conditions.
Justice Thomas in concurrence argued that Section 5 should have been thrown out altogether under the majority’s rationale.
The decision is typical in some ways of the Roberts court. It is cautious, and in this case chose to leave open the possibility that Congress could craft some formula that would still allow for pre-clearance. But in practice this may be harder than it seems. If the baseline becomes, for example, 1980, how many jurisdictions would still be subject to pre-clearance? In sum, although the court’s ruling is technically limited in practice, conservatives who find the Voting Richts Act entirely out of date and an unfair burden on states that have long since departed from their past history of discrimination may find Voting Rights Act pre-clearance severely limited.