WASHINGTON – A deeply divided Supreme Court on Tuesday halted enforcement of the federal government’s most potent tool to stop voting discrimination over the past half century, saying it does not reflect racial progress.
In a 5-4 ruling, the court declared unconstitutional a provision of the landmark Voting Rights Act that determines which states and localities must get Washington’s approval for proposed election changes.
President Barack Obama, the nation’s first black chief executive, issued a statement saying he was “deeply disappointed” with the ruling.
The decision effectively puts an end to the advance approval requirement that has been used, mainly in the South, to open up polling places to minority voters in the nearly half century since it was first enacted in 1965, unless Congress can come up with a new formula that Chief Justice John Roberts said meets “current conditions” in the United States.
Roberts, writing for a conservative majority, said the law Congress most recently renewed in 2006 relies on 40-year-old data that does not reflect racial progress and changes in U.S. society.
“The coverage formula that Congress reauthorized in 2006 ignores these developments, keeping the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs,” Roberts said.
Obama was sharply critical of the ruling and called on Congress to reinvigorate the law.
“While today’s decision is a setback, it doesn’t represent the end of our efforts to end voting discrimination,” the president said. “I am calling on Congress to pass legislation to ensure every American has equal access to the polls.”
That task eluded Congress in 2006 when lawmakers overwhelmingly renewed the advance approval requirement with no changes in the system by which states and local jurisdictions were chosen for coverage. And Congress did nothing in response to a high court ruling in a similar challenge in 2009 in which the justices raised many of the same concerns.
Tuesday’s decision means that a host of state and local laws that have not received Justice Department approval or have not yet been submitted will be able to take effect. Prominent among those are voter identification laws in Alabama and Mississippi.
Going forward, the outcome alters the calculus of passing election-related legislation in the affected states and local jurisdictions. The threat of an objection from Washington has hung over election-related proposals for nearly a half century. At least until Congress acts, that deterrent now is gone.
That prospect has upset civil rights groups which especially worry that changes on the local level might not get the same scrutiny as the actions of state legislatures.
Justice Ruth Bader Ginsburg, joined by her three liberal colleagues, dissented from Tuesday’s ruling.
“Hubris is a fit word for today’s demolition” of the law, Ginsburg said.
She said no one doubts that voting discrimination still exists. “But the court today terminates the remedy that proved to be best suited to block that discrimination,” she said in a dissent that she read aloud in the packed courtroom.
Ginsburg said the law continues to be necessary to protect against what she called subtler, “second-generation” barriers to voting. She identified one such effort as the switch to at-large voting from a district-by-district approach in a city with a sizable black minority. The at-large system allows the majority to “control the election of each city council member, effectively eliminating the potency of the minority’s votes,” she said.
Justice Clarence Thomas was part of the majority, but wrote separately to say again that he would have struck down the advance approval requirement itself.
Civil rights lawyers condemned the ruling.
“The Supreme Court has effectively gutted one of the nation’s most important and effective civil rights laws. Minority voters in places with a record of discrimination are now at greater risk of being disenfranchised than they have been in decades,” said Jon Greenbaum, chief counsel for the Lawyer’s Committee for Civil Rights Under Law. “Today’s decision is a blow to democracy. Jurisdictions will be able to enact policies which prevent minorities from voting, and the only recourse these citizens will have will be expensive and time-consuming litigation.”
Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, said, “This is like letting you keep your car, but taking away the keys.”
The decision comes five months after Obama started his second term in the White House, re-elected by a diverse coalition of voters.
The high court is in the midst of a broad re-examination of the ongoing necessity of laws and programs aimed at giving racial minorities access to major areas of American life from which they once were systematically excluded. The justices issued a modest ruling Monday that preserved affirmative action in higher education and will take on cases dealing with anti-discrimination sections of a federal housing law and another affirmative action case from Michigan next term.
The court warned of problems with the voting rights law in a similar case heard in 2009. The justices averted a major constitutional ruling at that time, but Congress did nothing to address the issues the court raised. The law’s opponents, sensing its vulnerability, filed several new lawsuits.
The latest decision came in a challenge to the advance approval, or preclearance, requirement, which was brought by Shelby County, Ala., a Birmingham suburb.
The lawsuit acknowledged that the measure’s strong medicine was appropriate and necessary to counteract decades of state-sponsored discrimination in voting, despite the Fifteenth Amendment’s guarantee of the vote for black Americans.
But it asked whether there was any end in sight for a provision that intrudes on states’ rights to conduct elections, an issue the court’s conservative justices also explored at the argument in February. It was considered an emergency response when first enacted in 1965.
The county noted that the 25-year extension approved in 2006 would keep some places under Washington’s oversight until 2031 and seemed not to account for changes that include the elimination of racial disparity in voter registration and turnout or the existence of allegations of race-based discrimination in voting in areas of the country that are not subject to the provision.
The Obama administration and civil rights groups said there is a continuing need for it and pointed to the Justice Department’s efforts to block voter ID laws in South Carolina and Texas last year, as well as a redistricting plan in Texas that a federal court found discriminated against the state’s large and growing Hispanic population.
Advance approval was put into the law to give federal officials a potent tool to defeat persistent efforts to keep blacks from voting.
The provision was a huge success because it shifted the legal burden and required governments that were covered to demonstrate that their proposed changes would not discriminate. Congress periodically has renewed it over the years. The most recent extension was overwhelmingly approved by a Republican-led Congress and signed by President George W. Bush.
The requirement currently applies to the states of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. It also covers certain counties in California, Florida, New York, North Carolina and South Dakota, and some local jurisdictions in Michigan. Coverage has been triggered by past discrimination not only against blacks, but also against American Indians, Asian-Americans, Alaska Natives and Hispanics.
Towns in New Hampshire that had been covered by the law were freed from the advance approval requirement in March. Supporters of the provision pointed to the ability to bail out of the prior approval provision to argue that the law was flexible enough to accommodate change and that the court should leave the Voting Rights Act intact.
On Monday, the Justice Department announced an agreement that would allow Hanover County, Va., to bail out.