The 5-4 ruling split the court along ideological lines. Voting Rights provision struck down

The Supreme Court Tuesday struck down a key part of the Voting Rights Act, ruling unconstitutional a provision of the landmark civil rights legislation used to promote the political power of minority voters across large swaths of the southern United States for nearly four decades.

In a 5-4 ruling that split the court along ideological lines, the court ended a requirement that some or all areas in 15 states get advance approval from the Justice Department or a panel of federal judges for all changes to voting laws, procedures and even polling place locations.


The court’s conservative majority said that when Congress reauthorized the law in 2006 it did not have sufficient basis to re-adopt a formula that is essentially the same as the one used when the law was first passed in 1965.

”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,” Chief Justice John Roberts wrote. “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.”

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Lawmakers “reenacted a formula based on 40-year-old facts, having no logical relationship to the present day,” Roberts wrote. Despite “thousands of pages of evidence” Congress accumulated in 2006, “we cannot pretend that we are reviewing an updated statute or try our hand at updating the statute ourselves, based on the new record compiled by Congress.”

Justice Ruth Bader Ginsburg, writing for the court’s three other liberals, complained that the court’s majority overstepped its bounds by failing to defer to Congress’s judgment that the preclearance rule was still needed.

Ginsburg began reading her dissent from the bench by noting there was agreement among the justices that race-based voting discrimination “still exists, no one doubts that” and that Congress had taken “extraordinary measures to meet the problem.”

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“Beyond those two points, the court divides sharply,” she said.

Congress concluded that continuing the requirement “would facilitate completion of the impressive gains thus far made [and] guard against backsliding,” Ginsburg wrote. “Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation.”

Ginsburg argued that the majority was trying to undo preclearance in part because it has been so successful at preventing discriminatory practices in the covered areas.

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“The number of discriminatory changes blocked or deterred by the preclearance requirement suggests that the state of voting rights in the covered jurisdictions would have been significantly different absent this remedy,” she wrote.

Ginsburg pointed to “second generation barriers” posed to minorities who want to vote — “methods more subtle” than the ones used in 1965 — including racial gerrymandering, redrawing legislative districts to segregate races, and at-large voting in lieu of district-by-district contests in cities with large black populations.

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Roberts argued that Congress essentially punted in 2006, finding it politically inconvenient to tinker with a formula that sweeps in most states in the deep South as well as Alaska, Arizona, parts of New York City, and various other counties and towns.

“We are not ignoring the record; we are simply recognizing that it played no role in shaping the statutory formula before us today,” the chief justice wrote. “There is no valid reason to insulate the coverage formula from review merely because it was previously enacted 40 years ago….Today’s statistics tell an entirely different story.”

Civil rights groups blasted the ruling — with NAACP Legal Defense Fund President Sherrilyn Ifill calling the decision a “game-changer” that “leaves virtually unprotected minority voters in communities all over this country” — but they immediately switched their focus to the prospect of fresh legislation.

“We’re disappointed, but now the ball is in Congress’s court,” she said. “We should be turning our attention and our cameras across the street.”

Those challenging the Voting Rights Act’s preclearance provision, known as Section 5, argued that it unfairly punishes the covered states and communities by singling them out for special requirements based on evidence of racial discrimination in 1965 rather than the present day.

In the case before the justices, Shelby County, Ala. claimed that the rule placed costly and cumbersome burdens on the covered jurisdictions by requiring that changes as minor as a shift in polling places be submitted to Washington for approval.

Supporters of keeping the law intact urged the justices to respect Congress’s judgment that the preclearance procedure was still needed to respond to various tactics that have been used to limit the voting power of African Americans and other minorities.

In 2006, the Senate backed reauthorization of the Voting Rights Act in a unanimous 98-0 vote. The House signed on by a lopsided margin of 390-to-33. President George W. Bush, flanked by civil rights leaders, held a Rose Garden ceremony to sign the bill, which extended the preclearance rule through 2031.

In last fall’s election, the Voting Rights Act’s preclearance rule played a central role in derailing so-called Voter ID legislation in several of the states where it was passed. Federal courts blocked such a measure in Texas and effectively postponed such legislation from taking effect in South Carolina. A Mississippi law was blocked by the Justice Department.

However, civil rights groups managed to find ways to block voter ID laws in two states not covered by the preclearance rule: Pennsylvania and Wisconsin. In both cases, state judges prohibited enforcement of the measures in 2012. However, the laws are expected to go into effect in future elections.

Tuesday’s decision was widely expected, especially in the wake of a 2009 ruling in which eight justices signed onto an opinion by Roberts saying the operation of the law “now raises serious constitutional concerns.” Justice Clarence Thomas, the sole dissenter from that 2009 opinion, wanted to strike down the preclearance provision at that time.

The majority insisted in its ruling that it was not disturbing the preclearance portion of the law known as Section 5, but the minority noted that without the part of the law dictating who had to follow those rules, the rules become a nullity.

“The Court purports to declare unconstitutional only the coverage formula…but without that formula, [Section] 5 is immobilized,” Ginsburg wrote in a footnote.

The ruling does not nullify the Voting Rights Act in its entirety. Citizens and the Justice Department still have the power to sue under Section 2 of the law in federal court to block practices that could make it harder for minority voters to vote or dilute their political power.

“Our decision in now way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2,” Roberts wrote.

However, the high court’s decision effectively shifts the burden in 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.

Just prior to the court’s ruling, the preclearance requirement applied to most or all of nine states: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. Certain areas in California, Florida, New York, North Carolina, South Dakota and Michigan were also covered.

The law contained a provision to allow states or localities to “bail out” of preclearance if they could show no evidence of discrimination for about a decade. Several dozen counties, cities and towns successfully used the “bail out” to escape the preclearance requirement, but the rules proved too onerous for states covered in their entirety to get out from under the law.

The Voting Rights Act, when passed in 1965, applied to states that had literacy tests or similar rules in 1964 or had less than 50 percent turnout in the 1964 presidential election. Congress tinkered with and updated the formula in 1970 and again in 1975, using 1972 turnout data.

However, during the 1986 and 2006 reauthorizations, lawmakers basically re-enacted the earlier formulas. They did so, in part, because opening the formula for debate would be politically rancorous since few jurisdictions want to be covered by the preclearance requirement. It seems unlikely that the current Congress, which rarely finds agreement on legislative matters, would be able to craft an agreement on a new formula.

There is also a provision in the law which allows courts to force states or localities found to have discriminated onto the list of covered jurisdictions. It’s unclear whether those areas are affected by Tuesday’s decision or whether the courts could or will still add localities to that roster.

Emily Schultheis and Breanna Edwards contributed to this report.