The U.S. Supreme Court dealt a major blow to civil rights progress on Tuesday by eliminating a key mechanism for ensuring access to the voting booth for all citizens. The court's undercutting of the Voting Rights Act of 1965 ignores recent history and makes it more likely that voters will be adversely impacted by race-based mischief in elections. The court's majority, led by Chief Justice John Roberts, is either being disingenuous or naive to believe that federal supervision is no longer warranted. Just last year, Florida discovered once again such oversight was required to protect voters' rights.
In Shelby County vs. Holder, on a 5-4 vote, the court upheld the ability of the federal government to approve all voting changes — from redistricting lines to voter identification requirements — in states and localities with a history of racial discrimination. But the court rejected the formula used for decades in determining which jurisdictions should fall under so-called "preclearance" review. Moderate Justice Anthony Kennedy sided with the court's four conservatives in paying lip service to the fact that "voting discrimination still exists" while neutering the law's ability to actually be enforced.
Nine states — mostly in the South — and scores of counties and municipalities are subject to preclearance under the formula that the court declared illegal Tuesday, including five counties in Florida: Hillsborough, Collier, Hardee, Hendry and Monroe.
Roberts' ruling blamed Congress for failing to update the formula for identifying discriminatory jurisdictions, saying it had changed little since a 1975 revision. He pointed out that minority voting participation in many preclearance jurisdictions now beats out national participation rates.
But when Congress renewed the preclearance requirements in 2006 by large bipartisan majorities — unanimously in the Senate — it created an extensive record of current conditions that justified renewal. Congress found that while minorities vote in far greater percentages than 40 years ago, tactics are still being employed to tamp down their voting strength.
For instance, Florida's Republican-led Legislature passed an election law in 2011 that sharply decreased early voting days from as many as 14 to eight, which experts said would have a negative impact on African-American voters. A federal panel denied approval for the change in 2012 until the covered jurisdictions agreed to keep the polls open the maximum number of hours.
Justice Ruth Bader Ginsburg's dissent, joined by the court's three additional liberals, cites some of the congressional findings that justify continuing the preclearance formula, including that between 1982 and 2006 the Justice Department blocked more than 700 voting changes in preclearance jurisdictions because they were discriminatory. And, between 1982 and 2004, more than 80 percent of the lawsuits where voting discrimination was proved came from covered jurisdictions.
There is almost no chance that Congress will muster the votes to pass a new formula for preclearance jurisdictions, which means the remedy for future prejudicial voting laws will have to be fought in the courts, probably long after an election has been won or lost. The court's ruling, in effect, nullifies what had been a historically successful policing mechanism toward ensuring a democracy in which all citizens can exercise their constitutional right to vote when it counts, in an election. On Tuesday, a majority of the U.S. Supreme Court turned its back on that promise.