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Will the Voting Rights Act survive the Roberts Court intact?

Yesterday marked the forty-seventh anniversary of the passage of the Voting Rights Act of 1965, a landmark piece of civil rights legislation that secured the right to vote for minorities.  When signing the Act into law, President Lyndon Johnson said,
This act flows from a clear and simple wrong. . . . Millions of Americans are denied the right to vote because of their color.  This law will ensure them the right to vote.  The wrong is one which no American, in his heart, can justify.  The right is one which no American, true to our principles, can deny.

The right to vote, however, stands in danger of being denied.  Five cases challenging central provisions of the Voting Rights Act were filed in federal court last term, and one or more of these is almost certain to come before the Supreme Court this coming year. With a hostile track-record on civil rights cases, the Roberts Court could take action to eviscerate, or severely impede, this "basic right without which all others are meaningless [that] gives people … control over their own destinies."

President Lyndon Johnson signs the Voting Rights Act
as Martin Luther King, Jr., and other civil rights leaders look on
LBJ Library photo by Yoichi R. Okamoto

The targeted provisions require states with a history of discriminating against minorities at the ballot box to obtain “preclearance” from the Department of Justice before making changes to their voting laws in order to ensure the laws have not been enacted with a discriminatory purpose and will not have a discriminatory effect.  States and localities that fall under this requirement are challenging the constitutionality of the law, alleging that circumstances in the state have changed such that they should no longer be subject to the preclearance requirement.  Others are defending laws passed by the state that have been blocked by the Department of Justice under the Act.  In 2006, Congress almost unanimously voted to reauthorize the Voting Rights Act until 2031, showing clear Congressional understanding that the law was still necessary.

In 2010, Shelby County, Alabama challenged the Act, claiming that Congress exceeded its enforcement powers and that the reauthorized Act therefore violated the Constitution.  The county lost when the United States Court of Appeals for the D.C. Circuit ruled 2-1 this May that the Act is constitutional.  Judge David Tatel, writing for the majority, held that while some things have changed in the covered jurisdictions since 1965, “serious and widespread intentional discrimination persisted” and that the preclearance requirement is necessary to continue to protect the rights of minorities.  Shelby County filed a cert. petition before the Supreme Court on July 20, appealing the Circuit Court’s ruling.

South Carolina and Texas have both filed challenges to Department of Justice action under the Act that has blocked the implementation of voter ID laws passed by the states.  The Department of Justice determined that the laws would have a harmful effect on the turnout of minorities at the polls.  The Texas challenge was heard in the U.S. District Court for the District of Columbia in early July.  A three-judge panel heard arguments from Texas, which both defended the Voter ID law and argued that Section 5 of the Voting Rights Act, which requires Texas and 15 other states to get preclearance.  The U.S. Department of Justice argued that the Voter ID law will have a racially discriminatory effect that results in voter suppression, and that laws such as the Voter ID law and Texas’ 2003 and 2011 redistricting efforts are exactly the type of race-specific voter suppression efforts that the Voting Rights Act was written to prohibit. The arguments from the state only raised constitutional questions in passing, but many legal observers suspect that Texas is seeking to use this case as a vehicle to challenge the constitutionality of the Voting Rights Act.  The District Court is expected to issue its decision in late August, at which time the case will be able to be appealed directly to the Supreme Court.

In a 2009 voting rights challenge that was decided on procedural grounds, not the merits, Chief Justice Roberts signaled – in fact, almost invited – a future challenge to the Act, writing for the majority that that the preclearance requirement raises “serious constitutional questions”.  Professor Kermit Roosevelt, a former clerk for Associate Justice David Souter, believes the Court will take a case challenging the Act, and predicts, “I expect the Voting Rights Act to go down.  The court has foreshadowed that result, and Roberts seems to want it.”  Should the Court decide to take one or more of these cases, the coming term could see the fundamental right to vote – the right “without which all others are meaningless” – significantly rolled back for the first time in 47 years.