At the core of the Court’s concern was that the test to determine whether a state or other jurisdiction must obtain preclearance has not been significantly revised since the early seventies. According to the Court majority, “The coverage formula and preclearance requirement were initially set to expire after five years, but the Act has been reauthorized several times. In 2006, the Act was reauthorized for an additional 25 years, but the coverage formula was not changed. Coverage still turned on whether a jurisdiction had a voting test in the 1960s or1970s, and had low voter registration or turnout at that time.”
It is to this issue and to this issue alone, that the Court ruled the Act unconstitutional. Provisions allowing for preclearance remain, as do the absolute prohibitions on actions by state and local governments that would suppress minority vote. While preclearance under Section 5 of the Act is functionally inoperative because of the actions of the Court, judicially imposed preclearance under Section 3 is also unaffected by the ruling. It should further be noted that the efforts by states to require identification at the polls were most recently addressed in 2008 by the Court in a case arising from the State of Indiana, not a covered jurisdiction under the VRA. The Court, on a 6-3 vote, upheld the Indiana law. And recently, the Justice Department precleared voter ID laws in New Hampshire and Virginia. Following the appellate procedures in the Act, South Carolina also implemented a voter ID law to be effective this year. So groups that are decrying the Court’s decision as opening the floodgates for repressive voter ID laws are both ignoring the current state of the law and grossly misrepresenting the scope of the Court’s decision.
The Court majority was calling for Congress to amend the VRA to reflect the demographics and electoral practices of the 21st century. Critics claim that the Republican majority in the House of Representatives will never allow for a preclearance program in the Department of Justice again, protecting their stronghold among southern voters. The flip side of this argument is what, exactly, do Republicans seek to gain by advancing the cause of states and local governments whose actions as it relates to voting are at least somewhat suspect? As is lamentably the case with so many pressing public policy issues, the Republicans seem incapable of articulating how the Court majority’s opinion regarding the VRA can be transformed into public policy that empowers the franchise for all Americans today.
The Supreme Court majority in the Shelby County decision was decidedly not saying voter suppression is no longer an issue. And the dissenting opinion is on a different but equally murky position than the majority if their position as a matter of Constitutional law is that there are some states whose actions were so egregious at a particular point in time, even if centuries ago, that they can never purge the stain of Jim Crow from their actions and must always have the supervision of the Department of Justice when it comes to voting issues.
America is changing demographically. That change also profoundly affects the voting franchise. Regardless of whose hands draw the maps, regardless of whose majorities in state legislatures devise rules for registering voters and conducting the vote, we must be ever vigilant that this most important of rights does not become hostage to the expedient of a particular election cycle. This is not an issue of partisan politics as so many partisan activists would have us believe including, regrettably, those on the Supreme Court. This is not an issue that involves some states – it involves all states. It is, instead, an overwhelming issue of integrity of our elections, whether for City Hall or the White House. The blinders must be put back on Justice, and the Congress must revisit the VRA to uphold its promise and not a particular outcome in a particular state. We have made great progress since 1965, but in order to continue on that path we must understand where we are and where we are going, not just where we are coming from.