How SCOTUS Is Forcing Congress to Save the Voting Rights Act

Over the years, we've looked at attacks on voting rights throughout the nation. We know many Americans still face hardships in even reaching the ballot box. But apparently, the US Supreme Court (majority) is again ignoring reality. In a "party line" 5-4 vote, SCOTUS overturned Section 4 of the Voting Rights Act.

So why is this important? Southern Poverty Law Center Founder Morris Dees explains.

Section 5 was enacted because Congress concluded that prior anti-discrimination laws were not strong enough to overcome the resistance of state and local officials determined to deny African Americans the ability to exercise the right to vote.  Those officials were concentrated in the South.  All too often, they would play games with the Justice Department, adopting new discriminatory voting schemes as soon as old ones were challenged. Section 5 put an end to the game playing.  It requires jurisdictions with a history of egregious voter discrimination – jurisdictions like Alabama – to submit proposed voting changes to the Justice Department or a federal court for review before the changes can be implemented.

Section 5 does not prohibit voting changes.  It simply provides protections against changes that are discriminatory.  Section 5 does not require covered jurisdictions to forever submit proposed changes to the Justice Department.  Those with a ten-year clean bill of health can avail themselves of the “bailout” provisions and remove themselves from Section 5’s coverage. [...]

The racial polarization in the presidential election was not unusual for my home state.  In the history of voting in Alabama, not a single black candidate has been able to defeat a white incumbent or win an open seat in a statewide race.  In majority white local jurisdictions, black political success is still rare.  Today, for example, not a single black sheriff or probate judge serves in a predominantly white Alabama county.  As a result of the high degree of white racial bloc voting, black office holders in Alabama are confined almost exclusively to minority districts created as a result of lawsuits like the one I filed in 1970 to ensure that black voters are not completely subsumed by majority white districts hostile to their interests.

The fact that voting is racially polarized does not mean that only racists can win elections in Alabama.  My state has seen many progressive white office holders over the years.  But, in a democracy, elected officials tend, over time, to be responsive to the interests of the electorate.  And in the state of Alabama, the electorate is still highly polarized along racial lines.  That polarization distorts the political process in ways that retard the growth of multiracial coalitions and give the majority the ability to dominate the minority. Given Alabama’s racial history and its reality of racially polarized voting today, the potential for electoral game playing still exists.  It’s that potential that Section 5 was designed to address.

In a way, civil rights activists dodged what would have been the deadliest bullet to progress on racial equality. The Court let Section 5 itself stand...

Or did it? After all, Section 5 (pre-clearance of voting laws in identified discriminatory trouble spots) can only be carried out with Section 4. And this is because Section 4 sets up the map of discriminatory trouble spots!

So what happens now? SCOTUS is sending this matter back to Congress. Wait... WHAT?!

Earlier today, the Supreme Court declared Section 4 of the Voting Rights Act of 1965 unconstitutional. Section 4 is the formula which determines which jurisdictions are subject to “preclearance” under the law, meaning that new voting laws in those jurisdictions must be reviewed by the Justice Department or a federal court before they can take effect. Although today’s opinion ostensibly would permit Congress to revive the preclearance regime by enacting a new formula that complies with today’s decision, that would require a functioning Congress — so the likely impact of today’s decision is that many areas that were unable to enact voter suppression laws under the Voting Rights Act will now be able to put those laws into effect.

That's why many civil rights activists are afraid. Congress will have to write a new Section 4 in order to enforce Section 5. So can Congress do that?

I think you already know the answer. So it's time to start asking Senator Dean Heller and Rep. Joe Heck. And it's time for President Obama and Senator Harry Reid to figure out how to actually make Congress work to save something that's so critical to saving our democracy. After all, how can our democracy function if many of our citizens can't even vote?