Supreme Court strikes down key part of Voting Rights Act

Richard Wolf and Brad Heath | USA TODAY

WASHINGTON – A bitterly divided Supreme Court drove a stake through the heart of the landmark Voting Rights Act Tuesday, striking down a coverage formula that Congress has used to monitor states with a history of discrimination.

Declaring that "our country has changed in the past 50 years," Chief Justice John Roberts and the court's four other conservatives said the 1965 law cannot be enforced unless Congress updates it to account for a half-century of civil rights advances.

The court's 5-4 ruling in the case from Alabama frees states and municipalities with a history of racial discrimination from having to clear changes in voting procedures with the federal government. That restriction has applied to nine states and parts of six others, mostly in the South.

"Coverage today is based on decades-old data and eradicated practices," Roberts said. "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," he wrote.

The decision came in the second of two major cases involving race to come before the high court this term. In the other, decided Monday, the court reaffirmed that affirmative action is constitutional but instructed lower-court judges to look far more critically at whether universities can prove their use of racial preferences is the only way to achieve a diverse student body.

Tuesday's opinion did not invalidate the Voting Rights Act's "preclearance" requirement outright. Instead, Roberts said Congress failed to account for broad changes in the nation's civil rights landscape since it first laid out its method for determining which states and counties would be covered. That failure, Roberts wrote, left the court "with no choice" but to invalidate Section 4 of the law, which spells out which states face that additional scrutiny.

President Obama swiftly condemned the decision and called on Congress to work around it.

"For nearly 50 years, the Voting Rights Act – enacted and repeatedly renewed by wide bipartisan majorities in Congress – has helped secure the right to vote for millions of Americans," Obama said. "Today's decision invalidating one of its core provisions upsets decades of well-established practices that help make sure voting is fair, especially in places where voting discrimination has been historically prevalent."

Attorney General Eric Holder said the decision is "a serious setback for voting rights." Other parts of the voting law "cannot totally fill the void left by today's Supreme Court ruling," he said.

The decision leaves Congress an opening to reinstate federal oversight: Lawmakers are free to come up with a new formula "based on current conditions" to salvage the federal oversight requirement, Roberts wrote.

But on Capitol Hill, even Democrats who support the Voting Rights Act said passing new legislation was a very long shot at best. Lawmakers are divided and frequently stalemated over issues ranging from taxes to immigration to a routine farm bill.

"Make no mistake about it, this is a back door way to gut the Voting Rights Act," Sen. Charles Schumer, D-N.Y., said. "As long as Republicans have a majority in the House and Democrats don't have 60 votes in the Senate, there will be no preclearance."

Justice Ruth Bader Ginsburg, in a lengthy dissent tracing the history of recent voting discrimination, said Congress already had more than enough justification for singling out some states and not others.

"Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extir­pated," she wrote. "In my judgment, the Court errs egregiously by overriding Congress' decision."

The decision met with swift condemnation from civil rights advocates, who accused the court's conservatives of destroying a law that has been responsible for helping to stamp out discrimination at the ballot box.

"The Supreme Court has effectively gutted one of the nation's most important and effective civil rights laws," said Jon Greenbaum, chief counsel for the Lawyers' Committee for Civil Rights Under Law. "Minority voters in places with a record of discrimination are now at greater risk of being disenfranchised than they have been in decades."

Roberts, joined by justices Antonin Scalia, Samuel Alito, Clarence Thomas and Anthony Kennedy, said federal election oversight is a deep and unusual intrusion into states' normal ability to manage their own affairs, justified only by pervasive voting discrimination when the law was enacted. He said that Congress had not adequately justified singling out the same states for extra scrutiny.

State officials through the Deep South hailed the decision.

"The Supreme Court today rightly recognized that Alabama and other covered jurisdictions could not be treated unequally based on things that happened decades ago," said Alabama Attorney General Luther Strange.

"This is a victory for all voters, as all states can now act equally, without some having to ask for permission or being required to jump through the extraordinary hoops demanded by federal bureaucracy," South Carolina Attorney General Alan Wilson said.

Justice Clarence Thomas, the court's lone African American, wrote in a separate opinion that he was willing to go farther and completely invalidate the Voting Rights Act's preclearance requirement, known as Section 5. The court's narrower decision, he said, "needlessly prolongs the demise of that provision."

The Voting Rights Act was passed by Congress and signed by President Lyndon Johnson -- with the Rev. Martin Luther King Jr. standing near -- in the wake of the violence and bloodshed that marked the 1950s and 1960s throughout the South.

It outlawed the types of voting practices that were common in many states, such as poll taxes and literacy tests, and set up legal and regulatory processes to overturn them.

The steel spine of the law was Section 5, which required certain states and municipalities to get federal permission before making changes in voting practices. Before it was invalidated on Tuesday, Section 4 of the law laid out which parts of the country would be subject to that requirement.

Under a formula devised to capture those states, Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, along with Arizona and Alaska, emerged with what they now consider a scarlet letter. The law was reauthorized in 1970, 1975, 1982 and 2006 with only minor changes.

But the Supreme Court's majority finally lost patience with lawmakers who had refused to update the list of states and municipalities deemed discriminatory, despite wholesale gains in the South by blacks and other minority voters and elected officials.

The ruling tosses the ball back to Congress, which could try to update a coverage formula based on 1972 data. Few observers, however, expect lawmakers to pick and choose among states and municipalities, even if they could overcome political inertia.

The court's conservatives, led by Roberts, had signaled their intentions during oral arguments in February. They expressed disdain for a geographic formula last updated in 1972 that forces most of the Deep South -- but also certain municipalities from Florida to Alaska -- to check even the relocation of polling places with the Department of Justice.

Justice Anthony Kennedy, the court's perennial swing vote, likened the states' plight to being "under the trusteeship of the United States government." Justice Antonin Scalia drew gasps inside the courtroom when he referred disdainfully to "racial entitlements."

And Roberts had long ago signaled his impatience with laws that give minorities a leg up on whites. In a 2007 decision on public school integration, he famously declared: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Roberts and the court had punted on the issue four years ago, ruling that a Texas water district — and any municipality, for that matter — could get out from under Section 5 by demonstrating 10 years of good behavior. More than 200 municipalities have done so since the law's inception.

Even then, however, Roberts had warned that "things have changed in the South" and the pre-clearance requirements and coverage formula "raise serious constitutional questions."

The new case came to the court with two lower court strikes against Shelby County's challenge. In the most recent decision, the U.S. Court of Appeals for the D.C. Circuit ruled last year that the coverage formula "is not perfect, but the fit was hardly perfect in 1965."

The Obama administration warned the court not to mess with Congress' legislative authority. "Invidious racial discrimination is the most pernicious form of governmental discrimination prohibited by the Constitution," the government's brief said. That puts Congress "at the zenith of its constitutional authority."

Civil rights advocates and the court's left-leaning justices noted that the provision was used as recently as last year to beat back photo ID laws, redistricting plans and restrictions on early voting. Without it, they said, states could resume discriminatory practices.

But opponents of the law argued that the types of state and local election laws that continue to draw fire today "exist to a greater degree outside those covered jurisdictions than they do inside the jurisdictions," said Edward Blum, director of the Project on Fair Representation, who helped initiate Shelby County's lawsuit.

Both sides agree that progress has been made: Black voter turnout topped white turnout in last year's presidential election and was strongest in some of the Southern states subjected to the strictest oversight under the Voting Rights Act.

Minorities also have been elected to local offices in record numbers, thanks to the creation of so-called "majority-minority" districts. In 1965, the 11 states of the Old Confederacy, stretching from Virginia to Texas, had a total of three black state legislators. By 2009, the number had grown to 321, or 18% of the total, according to the National Conference of State Legislatures.

But over the same period, Southern legislatures that were overwhelmingly Democratic in 1965 have turned Republican. Today, the GOP controls both houses of the legislatures in all 11 states.

In recent years, the number of objections by the Justice Department to states' voting changes has declined dramatically. In 1976, there were 64 objections, including 30 in Texas alone. In recent years, the number dropped to five or less. While there were 10 objections last year, this year has produced only one.

Meanwhile, the number of municipalities that have "bailed out" of Section 5 by maintaining a clean record on voting rights for 10 years has risen. From 1998 to 2008, only Virginia municipalities were excused from federal oversight. In the last three years, they were joined by several in California, Texas, Alabama, and the entire state of New Hampshire.

The law's defenders say Section 5 prevented Texas, Florida and South Carolina from enacting new voting restrictions in 2012. This year, they say, it stands as a bulwark against similar discrimination. In Beaumont, Texas, a school board election was canceled to prevent white candidates from running unopposed in three majority-black districts. In North Carolina, lawmakers have proposed new restrictions on voter identification, registration and early voting.

Professor: decision changes 'political dynamic' A law professor says Chief Justice John Roberts showed his contempt for Congress in the majority opinion that struck down portions of the Voting Rights Act as unconstitutional. (June 25)

The remainder of the Voting Rights Act wasn't challenged in the case. The law still will provide for legal challenges to voting changes deemed discriminatory in any state. But those after-the-fact challenges can be costly and time-consuming.

Follow @richardjwolf on Twitter.