In a 5-4 ruling over liberal dissent, the Supreme Court today declared "accomplished" a "mission" that has become more, not less, dire in the four years since the justices last revisited the subject. They have done so by focusing on voter turnout, which surely has changed for the better in the past fifty years, and by ignoring the other ruses now widely employed to suppress minority votes. In so doing, the five federal judges responsible for this result, all appointed by Republican presidents, have made it materially easier for Republican lawmakers to hassle and harry and disenfranchise likely Democratic voters. And they have done so by claiming that the Congress didn't mean what it said when it renewed the act by landslide votes in 2006.
No statute is ever perfect. Perhaps Congress should indeed have updated the "coverage formula" of Section 4 when it last revisited the law. But there are plenty of imperfect laws kept afloat by courts, including this Court. What happened here is that the Court's conservatives were no longer willing to countenance the intrusion upon "state sovereignty" that Section 4 represented in the absence of what they considered to be "updated" justifications for federal oversight. To the majority, the fact that "minority candidates hold office at unprecedented levels," was more important than the fact that Section 4 was invoked more than 700 times between 1982 and 2006 to block racially discrimination voting measures.
The opinion itself is as accessible as any you are likely to read. Writing for the Court, the Chief Justice declared that Congress simply failed to update the "coverage formula" of Section 4 to address the very successes that the Voting Rights Act has brought to minority voting rights over the past 50 years. If Congress is to divide the states between "covered" and uncovered jurisdictions, the Chief Justice wrote, it bears a heavy burden under the Tenth Amendment and "must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It simply cannot rely on the past."
The Fifteenth Amendment, which decrees "that the right to vote shall not be denied or abridged on account of race or color," the Chief Justice wrote in a remarkable passage, "is not designed to punish for the past; its purpose is to ensure a better future." Yet the Court's ruling today directly contradicts that lofty premise. A black voter in Shelby County today, as a result of this ruling, has a much grimmer "future" when it comes to voting rights than she did yesterday. Without Section 4's formula, Section 5 is neutered, and without Section 5 that black voter in Shelby County will have to litigate for her rights herself after the discriminatory law has come into effect.
In a passionate dissent, Justice Ruth Bader Ginsburg immediately homed in on the extraordinarily aggressive nature of what the Court has just done. "The question this case presents," she wrote, "is who decides whether, as currently operative, Section 5 remains justifiable, this Court, or a Congress charged with the obligation to enforce the post-Civil War amendments 'by appropriate legislation.'" Until today, Justice Ginsburg wrote, the Court
"had accorded Congress the full measure of respect its
judgments should garner" in implementing that anti-discriminatory intent
of the Fourteenth and Fifteenth Amendments. Until today.