US Supreme Court building in Washington (Getty Images)
WASHINGTON (USA Today) -- The Supreme Court struck down a key section of a landmark voting rights law on Tuesday, saying Congress failed to take account of changing circumstances in the South when it decided which states would be subjected to additional scrutiny under the 1965 Voting Rights Act.
The court's 5-4 ruling in the case from Alabama frees states and municipalities with a history of racial discrimination from having to clear changes in voting procedures with the federal government -- at least for now. That restriction, part of the Voting Rights Act, has applied to nine states and parts of six others, mostly in the South.
Chief Justice John Roberts wrote the 5-4 decision in Shelby County v. Holder for the court's conservative majority. The four more liberal justices dissented.
READ THE DECISION | Supreme Court: Shelby Co., Ala. v Holder
The decision came in one of two major cases involving race to come before the high court this term. In the other, decided Monday, the court reaffirmed that affirmative action is constitutional but instructed lower-court judges to look far more critically at whether schools can prove their use of racial preferences is the only way to achieve a diverse student body.
Tuesday's opinion did not invalidate the Voting Rights Act's "preclearance" requirement outright. Instead, Roberts said Congress failed to update the formula it used to determine which states and counties would be covered by that requirement to take account of changing circumstances in the South. That failure, Roberts wrote, left the court "with no choice" but to declare Congress' formula unconstitutional.
Still, Roberts wrote, "our decision in no way affects the permanent, nationwide ban on racial discrimination in voting." He said "Congress may draft another formula based on
Roberts was joined by the court's three other conservatives and Justice Anthony Kennedy. The court's four liberals dissented.
The Voting Rights Act was passed by Congress and signed by President Lyndon Johnson -- with the Rev. Martin Luther King Jr. standing near -- in the wake of the violence and bloodshed that marked the 1950s and 1960s throughout the South.
It outlawed the types of voting practices that were common in many states, such as poll taxes and literacy tests, and set up legal and regulatory processes to overturn them.
The steel spine of the law was Section 5, which required certain states and municipalities to get federal permission before making changes in voting practices.
Under a formula devised to capture those states, Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, along with Arizona and Alaska, emerged with what they now consider a scarlet letter. The law was reauthorized in 1970, 1975, 1982 and 2006 with only minor changes.
But the Supreme Court's majority finally lost patience with lawmakers who had refused to update the list of states and municipalities deemed discriminatory, despite wholesale gains in the South by blacks and other minority voters and elected officials.
The ruling tosses the ball back to Congress, which could try to update a coverage formula based on 1972 data. Few observers, however, expect lawmakers to pick and choose among states and municipalities, even if they could overcome political inertia.
The court's conservatives, led by Roberts, had signaled their intentions during oral arguments in February. They expressed disdain for a geographic formula last updated in 1972 that forces most of the Deep South -- but also certain municipalities from Florida to Alaska -- to check even the relocation of polling places with the Department of Justice.
Justice Anthony Kennedy, the court's perennial swing vote, likened the states' plight to being "under the trusteeship of the United States government." Justice Antonin Scalia drew gasps inside the courtroom when he referred disdainfully to "racial entitlements."
And Roberts had long ago signaled his impatience with laws that give minorities a leg up on whites. In a 2007 decision on public school integration, he famously declared: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
Roberts and the court had punted on the issue four years ago, ruling that a Texas water district - and any municipality, for that matter - could get out from under Section 5 by demonstrating 10 years of good behavior. More than 200 municipalities have done so since the law's inception.
Even then, however, Roberts had warned that "things have changed in the South" and the pre-clearance requirements and coverage formula "raise serious constitutional questions."
The new case came to the court with two lower court strikes against Shelby County's challenge. In the most recent decision, the U.S. Court of Appeals for the D.C. Circuit ruled last year that the coverage formula "is not perfect, but the fit was hardly perfect in 1965."
The Obama administration warned the court not to mess with Congress' legislative authority. "Invidious racial discrimination is the most pernicious form of governmental discrimination prohibited by the Constitution," the government's brief said. That puts Congress "at the zenith of its constitutional authority."
The White House released a statement from the president on the ruling:
I am deeply disappointed with the Supreme Court's decision today. For nearly 50 years, the Voting Rights Act - enacted and repeatedly renewed by wide bipartisan majorities in Congress - has helped secure the right to vote for millions of Americans. Today's decision invalidating one of its core provisions upsets decades of well-established practices that help make sure voting is fair, especially in places where voting discrimination has been historically prevalent.
As a nation, we've made a great deal of progress towards guaranteeing every American the right to vote. But, as the Supreme Court recognized, voting discrimination still exists. And while 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.
Civil rights advocates and the court's left-leaning justices noted that the provision was used as recently as last year to beat back photo ID laws, redistricting plans and restrictions on early voting. Without it, they said, states could resume discriminatory practices.
But opponents of the law argued that the types of state and local election laws that continue to draw fire today "exist to a greater degree outside those covered jurisdictions than they do inside the jurisdictions," said Edward Blum, director of the Project on Fair Representation, who helped initiate Shelby County's lawsuit.
Both sides agree that progress has been made: Black voter turnout topped white turnout in last year's presidential election and was strongest in some of the Southern states subjected to the strictest oversight under the Voting Rights Act.
Minorities also have been elected to local offices in record numbers, thanks to the creation of so-called "majority-minority" districts. In 1965, the 11 states of the Old Confederacy, stretching from Virginia to Texas, had a total of three black state legislators. By 2009, the number had grown to 321, or 18% of the total, according to the National Conference of State Legislatures.
But over the same period, Southern legislatures that were overwhelmingly Democratic in 1965 have turned Republican. Today, the GOP controls both houses of the legislatures in all 11 states.
In recent years, the number of objections by the Justice Department to states' voting changes has declined dramatically. In 1976, there were 64 objections, including 30 in Texas alone. In recent years, the number dropped to five or less. While there were 10 objections last year, this year has produced only one.
Meanwhile, the number of municipalities that have "bailed out" of Section 5 by maintaining a clean record on voting rights for 10 years has risen. From 1998 to 2008, only Virginia municipalities were excused from federal oversight. In the last three years, they were joined by several in California, Texas, Alabama, and the entire state of New Hampshire.
The law's defenders say Section 5 prevented Texas, Florida and South Carolina from enacting new voting restrictions in 2012. This year, they say, it stands as a bulwark against similar discrimination. In Beaumont, Texas, a school board election was canceled to prevent white candidates from running unopposed in three majority-black districts. In North Carolina, lawmakers have proposed new restrictions on voter identification, registration and early voting.
The remainder of the Voting Rights Act wasn't challenged in the case. The law still will provide for legal challenges to voting changes deemed discriminatory in any state. But those after-the-fact challenges can be costly and time-consuming.
According to Governor Deal, Georgia has earned the right to equal treatment. He said Tuesday:
"The Voting Rights Act was a vital tool in the struggle to ensure that all Americans had access to the ballot box," said Deal. "But determining who needs 'preclearance' by a formula based on the 1964 election defies logic. Over the last half century, Georgia has reformed, and our state is a proud symbol of progress. Today's decision guarantees that Georgia will be treated like every other state - a right we have earned. Our continued dedication to voting rights in Georgia will verify the wisdom of the court's determination today. The Voting Rights Act, when passed, was a clarion call for human rights and stands as one of the most important laws in our nation's history. In fact, the fact that we no longer need Section 5 testifies to the success of the law much more than its renewal ever could."
Mayor Kasim Reed released the following statement on the ruling:
"The Supreme Court decision in Shelby County vs. Holder is stunningly disappointing and ignores the clear intent of the United States Congress, which has enacted and repeatedly reauthorized the Voting Rights Act since 1965 by wide bipartisan majorities, reflecting the undeniable will of the people that each vote be counted regardless of whether it is cast by an ethnic minority. Unfortunately, the court did away with decades of well-reasoned and established legal precedence upholding the constitutionality of the Voting Rights Act, including Section 4 which required certain states including Georgia (except for Sandy Springs) to seek preclearance before making changes to their voting procedures. There is no other way to view this other than as a blow to the rule of law that every citizen with the right to vote shall have his or her vote counted."
US Rep. Lynn Westmoreland (R-3rd) said he was happy with the ruling in a statement Tuesday afternoon.
"We no longer suffer from the voting rights issues we saw in 1965 that led to the passage of the Voting Rights Act," stated Westmoreland. "Over the last 48 years, we have seen huge strides in minority voting and in minority representation on a local, state, and federal level. In my home state of Georgia, we had 582 African American elected officials in 2000 - up from just 30 in 1970. This shows that the VRA has worked and it is now time to update the law to reflect these changed conditions. The Supreme Court's decision will not weaken the positive impact the VRA had on our country nor will it diminish the importance of the Civil Rights Movement. It simply acknowledges the progress that has been made since 1965."
He said the ruling should not have come as a surprise.
"This ruling should not come as a surprise," stated Westmoreland. "The Supreme Court urged Congress in 2009 to update the Voting Rights Act because it 'raises serious constitutional concerns' and 'differentiates between states in ways that may no longer be justified.' That's because this law used outdated information to set the formula for preclearance and punished certain areas of the country for the sins of their fathers and grandfathers. To put it in perspective, a person who became eligible to vote the year the VRA was signed into law became eligible for Medicare last year. That's why I pushed so hard to update the coverage formula - the portion the Court struck down - when the VRA came up for reauthorization in 2006. Unfortunately, my pleas fell on deaf ears and the law was not updated. If my colleagues had only joined me in updating the law, we would not be at a place where the VRA has essentially become toothless."
Two other major rulings from the Supreme Court -- tied to the federal Defense of Marriage Act and California's Propsition 8 -- are expected on Wednesday.