News & Politics

Supreme Court's Right-Wing Clique Guts the Voting Rights Act -- After Five Decades of Protecting Minorities, Suddenly, It's 'Unconstitutional'

The ruling means that the Department of Justice will no longer be able to stop many of the most abusive election practices we saw in the most recent election.

The U.S. Supreme Court’s Republican-appointed majority has ruled that the 'legal formula' behind the most powerful section of civil rights era Voting Rights Act—allowing the Justice Department to veto changes in election laws in states and counties with histories of racial discrimination—is outdated and unconstitutional.

“Section 4 is unconstitutional in light of current conditions. In 1966, the formula was rational in both practice and theory,” the Court held, in a 5-4 opinion written by Chief Justice John Roberts, referring to the part of the law that allowed the federal government to assess and block racially discriminatory changes in voting laws.  

“Section 4 of the Voting Rights Act is unconstitutional,” Roberts wrote, gutting the law. “Its formula can no longer be used as a basis for subjecting jurisdictions to preclearance … Coverage today is based on decades-old data and eradicated practices.” 

The Supreme Court’s ruling essentially invalidates the landmark civil rights era law until Congress revises the part of the law that determines what racial discrimination in voting procedures and elections looks like, which is unlikely given the U.S. House's current GOP majority.

"Today’s decision is a huge setback for civil rights in our nation," said Gerald Hebert, Campaign Legal Center executive director. "It is citizens, specifically the nation’s minorities, who will suffer as a result the votes of 5 Supreme Court Justices. The Roberts Court proved again that it will not be deterred by Supreme Court precedent, the realities on the ground in our nation; nor will it defer to Congress even when the legislative branch is granted clear authority by the Constitution to remedy our nation's long history of discrimination against racial and language minorities."

The ruling comes in an Alabama case where activist Republicans sued to stop the Justice Department or a three-judge appeals court in Washington from vetoing changes in state and local election laws in the 16 states that are covered under the Voting Rights Act. The decision was predicted by election lawyers because the Court’s right-wing justices have previously expressed their frustrations with the law and Congress’ intentional failure not to update its coverage formula section.

The ruling means that the Department of Justice will no longer be able to stop many of the most abusive election practices seen in the 2012 presidential election cycle where Republicans sought to change voting rules to advantage their party. The DOJ used the law to reject racially biased congressional district lines in Texas, to reject Florida’s efforts to curtail early voting and voter registration drives, and to reject new and tougher voter ID laws in other states.

The Voting Right Act of 1964 has been a pillar of the Civil Rights Movement and the section that was declared unconstitutional was the procedural heart of its enforcement tool. Needless to day, civil rights groups, while not surprised at the ruling, say the decision is a historic step backward that empowers more race-based political tactics.

"The Court today declared racism dead in this country despite mountains of evidence to the contrary," Hebert said.

The Republicans have shrewdly but disingenuously argued that race relations in the U.S. have evolved to the point where the Voting Rights Act’s toughest provisions were no longer needed. That is disingenuous because the GOP in 2012 was the political party demonizing voters of color in an effort to deter voter their turnout, including training grassroots groups such as TrueTheVote to police polling places vigilante-style, passing many tougher voter ID laws and even buying billboards to intimidate non-white voters.

The lawyers attacking the Voting Rights Act, pointing to the law’s intricacies, argued that it was heavy-handed and unfairly burdensome to localities that did not deserve the federal oversight. Progressives countered by saying that those localities could opt out of the oversight, but apparently that view did not go very far with the Court’s rightwing majority, all justices appointed by Republican presidents. Like other recent Court decisions on civil rights issues such as affirmative action in university admissions and workplace harassment, the right-wing majority undermined progressive laws by undercutting their core provisions.

The most obvious impact of the decision will be to question ongoing legal fights in states like Texas, where the GOP-dominated Legislature has sought to redraw district lines to lessen the likelihood of electing Latinos. In other states that were not covered by the Voting Rights Act, such as Pennsylvania, civil rights lawyers have had to go to court semi-annually in an effort to hold the line against regressive partisan voting rules. 

The historic context for these state-by-state political fights is that the Republican Party knows that its largely white base is in a losing battle against America's changing demographics, where minority populations are growing and threatening longtime governing elites. Thus, the party has been waging a multi-front battle to limit the political rights of people from communities of color and to discourage participation by young voters as well. Even the most recent immigration reforms before Congress would bar Latinos on the path to citizenship from voting for more than a decade, for example. 

Now, following the Supreme Court’s ruling today, civil rights groups will be forced to fight state-by-state and jurisdiction-by-jurisidiction, instead relying on the Department of Justice to come in and stop wholesale changes in laws designed to disenfranchise voters.  

"The Supreme Court has effectively gutted one of the nation's most important and effective civil rights laws," said Jon Greenbaum, Chief Counsel, Lawyers’ Committee for Civil Rights Under Law. "Minority voters in places with a record of discrimination are now at greater risk of being disenfranchised than they have been in decades. Today's decision is a blow to democracy. Jurisdictions will be able to enact policies which prevent minorities from voting, and the only recourse these citizens will have will be expensive and time-consuming litigation.” 

Steven Rosenfeld covers national political issues for AlterNet, including America's democracy and voting rights. He is the author of several books on elections, including Democracy Betrayed: How Superdelegates, Redistricting, Party Insiders, and the Electoral College Rigged the 2016 Election, to be published in March 2018 from Hot Books.


Sign Up!
Get AlterNet's Daily Newsletter in Your Inbox
+ sign up for additional lists
Select additional lists by selecting the checkboxes below before clicking Subscribe:
Election 2018