Under the U.S. Supreme Court: Out from under the Voting Rights Act

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Writer
Chief Justice John Roberts, on left, listens with the other justices to President Barack Obama's State of the Union address on Feb. 12, 2103. Roberts wrote the majority opinion in June freeing states from the Voting Rights Act. -- UPI/Charles Dharapak/Pool
Chief Justice John Roberts, on left, listens with the other justices to President Barack Obama's State of the Union address on Feb. 12, 2103. Roberts wrote the majority opinion in June freeing states from the Voting Rights Act. -- UPI/Charles Dharapak/Pool | License Photo

WASHINGTON, July 7 (UPI) -- A number of states, freed from the iron cuffs of the Voting Rights Act by the U.S. Supreme Court, are enjoying their newfound freedom in predictable ways -- merrily pursuing voter ID laws and redrawing political districts without any interference from Washington.

Before the Supreme Court ruled late last month in a challenge brought by Shelby County, Ala., all or parts of 16 states, mainly in the South with a history of voter discrimination, had to get permission, or "preclearance," from the U.S. attorney general or a three-judge panel in Washington before making any changes in voting procedures, no matter how small.


No more.

The narrow 5-4 Supreme Court majority, divided along the court's ideological lines, did not strike down the entire act, one of the premier laws of the civil rights era. It just made it feckless.


Moreover, the ruling came as no surprise. In 2009, an 8-1 Supreme Court majority in Northwest Austin Utility vs. Holder refused to rule on the constitutionality of Section 5 of the act. But Chief Justice John Roberts, writing for the majority, warned that Section 5 was living on borrowed time.

"Things have changed in the South," Roberts wrote in 2009. "Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels. ...

"These improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success," he added. "Past success alone, however, is not adequate justification to retain the preclearance requirements. ... It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the act. But the act imposes current burdens and must be justified by current needs."

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Roberts said the act's threats to state sovereignty "are underscored by the argument that the preclearance requirements in one state would be unconstitutional in another. ... The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions."


The Voting Rights Act of 1965 was enacted to address entrenched racial discrimination in voting, "an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution," the Supreme Court said in 1966's South Carolina vs. Katzenbach, which upheld the preclearance requirements.

Section 2 of the act bans any "standard, practice or procedure" that "results in a denial or abridgement of the right of any citizen ... to vote on account of race or color." The section applies nationwide and was not an issue in last month's ruling.

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Section 4 of the act provided the "coverage formula," defining the "covered jurisdictions" as states or political subdivisions "that maintained tests or devices as prerequisites to voting, and had low voter registration or turnout, in the 1960s and early 1970s," the Supreme Court said in the majority ruling last month.

Section 5 of the act prohibits -- in the covered jurisdictions -- any change in voting procedures unless approved in Washington.

The coverage formula originally was supposed to expire in five years, but the law has been re-enacted several times. In 2006, Congress reauthorized the act for an additional 25 years.


A federal judge and the U.S. Court of Appeals for the D.C. Circuit, the second-most powerful court in the United States, ruled that Section 5 was still needed and therefore passed constitutional muster.

But Roberts' majority opinion last month struck down Section 4 of the Voting Rights Act as unconstitutional, saying it "can no longer be used as a basis for subjecting jurisdictions to preclearance."

The chief justice went out of his way to say Section 5 was not affected. But without a definition of covered areas, contained in the outlawed Section 4, Section 5 became meaningless.

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"Nearly 50 years later, [the Section 5 restrictions of 1965] are still in effect; indeed, they have been made more stringent, and are now scheduled to last until 2031," Roberts said. "There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions. By 2009 [citing Northwest Austin vs. Holder], 'the racial gap in voter registration and turnout [was] lower in the states originally covered by Section 5 than it [was] nationwide.'

"Since that time," the chief justice added, "Census Bureau data indicate that African-American voter turnout has come to exceed white voter turnout in five of the six states originally covered by Section 5, with a gap in the sixth state of less than one-half of 1 percent."


Roberts invited Congress to come up with a new coverage formula "that makes sense in light of current conditions." With Congress almost paralyzed by partisan rancor, no one is placing any bets on that happening.

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Justice Ruth Bader Ginsburg, joined by the three other liberals, was tart in dissent.

"Congress approached the 2006 reauthorization of the VRA with great care and seriousness," she wrote. "The same cannot be said of the court's opinion today. The court makes no genuine attempt to engage with the massive legislative record that Congress assembled [to support the need for the act]. Instead, it relies on increases in voter registration and turnout as if that were the whole story. ...

"Without even identifying a standard of review," she said, "the court dismissively brushes off arguments based on 'data from the record,' and declines to enter '[the debate] about what [the] record shows.'

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"One would expect more from an opinion striking at the heart of the nation's signal piece of civil-rights legislation."

The NAACP Legal Defense Fund -- the LDF -- said it is "closely monitoring how formerly covered states are responding to the Supreme Court's decision" in the Shelby County case. Officials in those states didn't let any grass grow under their feet before enjoying their new freedom in a post-Voting Rights Act world.


"Within 2 hours of the Supreme Court's decision, Texas Attorney General Greg Abbott announced that a voter identification law, previously rejected by a federal court as the most discriminatory measure of its kind in the country, will 'immediately' go into effect," the LDF said.

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"With today's decision, the state's voter ID law will take effect immediately," Abbott said in a statement. "Redistricting maps passed by the Legislature may also take effect without approval from the federal government."

LDF said on the day after the Voting Rights Act ruling, the Texas Department of Public Safety began to offer election identification certificates free of charge to Texans lacking other forms of ID. "But even though the EIC is 'free,' it does not account for the fact that many of the documents needed to receive an EIC are costly, or, as a federal court found, that some citizens may need to drive up to 250 miles to the nearest DPS to apply for an EIC."

Meanwhile, the LDF said, the lead sponsor of a proposed voter ID law in North Carolina said he would move ahead with the measure as a result of the ruling. The Los Angeles Times reported Republican leaders also are trying to end to the state's early voting, Sunday voting and same-day registration provisions. The newspaper said civil rights groups say the new actions are designed to restrict poll access of black voters.


In Mississippi, the LDF said, Secretary of State Delbert Hosemann said he would immediately implement the state's voter ID law for primaries in June 2014.

Florida Secretary of State Ken Detzne said the state is now free to reduce early voting hours. In August 2012, a federal court rejected the proposed plan as harmful to minority voters in the state, the LDF said.

In Fulton County, Ga., the state's most populous county, "likely will use county commission districts that Republican state legislators drew over the objections of local Democrats," the LDF said.

In South Carolina, a spokesman for the attorney general told MSNBC the state's support for voter ID "still applies."

But there are two huge flies in the post-Voting Rights Act ointment.

First, the U.S. Justice Department immediately pledged to prosecute discriminatory voting changes on an individual basis.

In Virginia, state Senate Majority Leader Tommy Norment, a Republican, pointed out voters concerned about discrimination in voting can still file suit, the LDF reported. Norment said voter discrimination "has no place in the Commonwealth and will not be tolerated by members of the Senate of Virginia. As every Virginia voter who believes a voting law or redistricting line to be discriminatory retains the ability to bring a court challenge, protections against voter discrimination remain intact despite the Supreme Court's decision on the Voting Rights Act."


The second big fly -- the week before the Voting Rights Act ruling the U.S. Supreme Court said the states could not add restrictions beyond the federal form to register when voting in federal elections. The justices ruled 7-2 Arizona's requirement of proof of citizenship before voter registration is pre-empted by federal law.

Seventeen states have enacted laws requiring the presentation of some type of government-issued photo identification, such as a driver's license, before voting. The 17 states account for 218 of the 270 electoral votes needed to win the presidency.

In an unusual coalition at the Supreme Court, conservative Justice Antonin Scalia wrote the majority opinion, and was joined by Chief Justice Roberts and the court's four liberals.

The Arizona case pitted the state requirement for proof of U.S. citizenship against the federal "Motor Voter" law that requires only filling out a form to register for federal elections.

A federal judge refused to issue an injunction against the implementation of the law in the case brought by a coalition of Hispanic, Indian and civil rights groups. However, a federal appellate panel, and then the entire 9th U.S. Circuit Court of Appeals in San Francisco reversed, saying the law violated Article I of the U.S. Constitution and the National Voter Registration Act, known as the "Motor Voter Act," which requires states to make it easier to register for federal elections. The act allows information gathered from license renewals, among other things, to be used for voter registration.


In affirming the lower courts, Scalia said: "The National Voter Registration Act requires states to 'accept and use' a uniform federal form to register voters for federal elections. The ... federal form ... does not require documentary evidence of citizenship; rather, it requires only that an applicant aver, under penalty of perjury, that he is a citizen. Arizona law requires voter-registration officials to 'reject' any application for registration, including a federal form ... not accompanied by concrete evidence of citizenship. The question is whether Arizona's evidence-of-citizenship requirement, as applied to federal form applicants, is pre-empted by the act's mandate that states 'accept and use' the federal form."

He added: "We conclude that the fairest reading of the statute is that a state-imposed requirement of evidence of citizenship not required by the federal form is 'inconsistent with' the NVRA's mandate that states "accept and use" the federal form. ... If this reading prevails, the [Constitution's] elections clause requires that Arizona's rule give way."

States may have no trouble applying voter ID laws to state elections, but given Scalia's opinion, any attempt to apply them to federal elections may be vulnerable to court challenge.

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