There will be a lot of gnashing of teeth over the U.S. Supreme Court’s 5-4 decision to strike down Section 4 of the Voting Rights Act. And while Section 4 was stuck down as unconstitutional, requiring Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia, Alaska and Arizona, plus parts of seven other states to seek Department of Justice preclearance before any changes in voting laws could be implemented, the decision left standing Section 5 that mandates preclearance. For proponents for striking down Section 5, this had to be a disappointment.
The court’s decision should not have been a surprise. Many on the court sent red flares as to their thinking when the VRA was reauthorized under the Republican-led government of President George W. Bush. The high court warned Congress again in a 2009 case that the data was obsolete. While the VRA was reauthorized in 1970, 1975, 1982 and 2006, the data used to justify which states had to pre-clear is 41 years old. Chief Justice John Roberts is correct in his Shelby County v. Holder majority opinion:
“Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. ....”
There is no question the country has changed since 1972 when Richard Nixon was president, and the data, just seven years removed from the passage of the VRA, reflects a much different nation. No one would say our country and its voting practices are perfect now. The court heard example after example of legislatures, school boards and municipalities attempting to stack the deck by playing funny with the numbers, moving minority voters here, there and yonder to suit their reelection wishes. That’s why the court allowed Section 5 to stand.
Now it is imperative that Congress update the coverage criteria -- and it’s imperative for those communities that think there is still a need for the VRA to lean on elected representatives and make them act. It will not be easy. Congress is more dysfunctional today than it has ever been -- far more so than in 1965 when President Lyndon Johnson signed the VRA into law. Standing behind him, among others, were Sen. Everett Dirkson, R-Ill., to his left and Vice President Walter Mondale, D-Minn., to his right. It is hard to get Republicans and Democrats in the same room at the same time today.
President Johnson said in his August 1965 address before Congress that, “The stories of our nation and of the American Negro are like two great rivers. Welling up from that tiny Jamestown spring (where the first slaves landed in 1619), they flow through the centuries along divided channels.”
While the divide has been narrowed, there are still those who seek to widen it and use it to their advantage. This decision could help them in their purpose, but they may find even more states under the scrutiny of the Department of Justice if they blindly play their hand.