Update: 12:02 PM
The Supreme Court issued a 5-4 decision on Tuesday gutting a centerpiece of the 1965 Voting Rights Act, which has long been used to preemptively snuff out discriminatory voting laws.
The majority opinion, written by Chief Justice John Roberts, overturns Section 4 of the law, declaring unconstitutional the formula used to identify which state and local governments with a history of racial discrimination are required to pre-clear any changes to their voting laws with the Justice Department or a federal court.
“Section 4 of the Voting Rights Act is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to pre-clearance,” Roberts wrote.
The ruling is a major blow to civil rights advocates as it is widely believed that Congress, which currently uses data from as far back as the 1970s to determine that formula, will not be able to pass a new formula into law. As a result, the ruling has the practical effect of neutering the pre-clearance requirement.
The decision frees up those jurisdictions to change their voting laws without supervision. But the federal government still has the power to target a voting law in court, after it is passed, if it is suspected of having a discriminatory effect on a particular racial group.
“Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in Â§2. We issue no holding on Â§5 itself, only on the coverage formula. Congress may draft another formula based on current conditions,” Roberts wrote in the majority opinion. “Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an ‘extraordinary departure from the traditional course of relations between the States and the Federal Government.’ … Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”
The four other Republican-appointed justices joined Roberts’ majority opinion. Justice Ruth Bader Ginsburg wrote the dissent, joined by the three other Democratic-appointed justices, slamming the majority’s “hubris” and “sad irony” of the ruling.
“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” Ginsburg wrote.
The outcome reflects the deeply skeptical line of questioning by the five conservative justices, who questioned whether times have changed so much that the Voting Rights Act now unnecessarily discriminates against the mostly southern jurisdictions subject to the pre-clearance requirement.
“I am deeply disappointed with the Supreme Court’s decision today,” President Obama said in a statement. “[W]hile today’s decision is a setback, it doesn’t represent the end of our efforts to end voting discrimination. I am calling on Congress to pass legislation to ensure every American has equal access to the polls. My Administration will continue to do everything in its power to ensure a fair and equal voting process.”
The NAACP denounced the decision as “an act of extraordinary judicial overreach.”
Prior to oral arguments, advocates warned that ruling against the preclearance requirement or formula would mean a huge blow to the rights of minorities to vote, describing the mischievous tricks that state and local governments would be able to use to discriminate against their ability to participate fairly in elections.
The Voting Rights Act has been reauthorized by Congress four times, most recently in 2006 for a period of 25 years, and its constitutionality previously upheld by the Supreme Court four times, most recently in 1999.
Although Senate Judiciary Chairman Patrick Leahy and other Democrats immediately called for reconstituting the preclearance section of the Voting Rights Act, Sen. Chuck Schumer (D-NY) candidly warned that Republicans won’t let it happen.
“As long as Republicans have a majority in the House and Democrats don’t have 60 votes in the Senate, there will be no preclearance,” Schumer said, denouncing the Supreme Court ruling as a “back door way to gut the Voting Rights Act.”