Even if it was not entirely unexpected, it is nonetheless shocking to read a five-Justice majority of the Supreme Court sweep away a core provision of the Voting Rights Act, the most celebrated piece of civil rights legislation in our nation’s history. In doing so, it left millions of voters — at least temporarily — without the protection of the most effective legal tool we have to combat racial discrimination in voting.
Technically, the Court did not strike down the heart of the Voting Rights Act — Section 5, the provision that requires certain states and localities with a record of voting discrimination to get federal approval before implementing changes to their voting systems. But by striking down the provision that says which states and localities are covered by the law, it rendered Section 5 inoperative. So at least for now, Section 5 is effectively a dead letter.
The majority recognized that this is an extraordinary judicial act, saying it did not “do so lightly.” Literally, it did. In a mere 24 pages, the Court majority dismissed the determination by overwhelming bipartisan majorities of Congress that the law was targeted to the places with the worst records of voting discrimination. The Court looked at the formal features of the coverage formula (the formula referred to voting data from 1972) and ignored the 15,000 pages of Congressional record amassing evidence of voting discrimination in those very same states today.
Therein lies the problem. Although we have undoubtedly made tremendous progress in eradicating discrimination, as the Supreme Court acknowledged, “no one doubts” the fact that “voting discrimination still exists” today. The Constitution expressly charges Congress with the power to enact legislation to root out such discrimination. Congress overwhelmingly found that the problem was still particularly bad in certain places and that Section 5 was still needed to ensure equal voting rights there. The Court majority provided no reason to believe that Congress was wrong in that determination.
That brings us to the good news. The Court did not undermine Congress’s authority to enact Section 5 or even to apply it to the states that were previously covered by the law. And, again, the Court provided no reason to believe that the law that it just rendered inoperative was not justified. It just said that Congress needed a new formula “based on current conditions.” It barely stopped short of inviting Congress to draft new legislation. And that’s what needs to happen.
The country needs Congress to come together yet again, in a reasoned and bipartisan way, to replace what we lost today — our most powerful bulwark against discrimination in the voting process. We need our law to fully reflect and protect our country’s ideals of political equality.
Today is a sad day for our democracy. But tomorrow need not be.
Photo by The Leadership Conference.