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June 25, 2013

SCOTUS Strikes Down Key Parts Of the Voting Rights Act

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States and local governments that previously had to have the Department of Justice "pre-clear" changes to election laws/procedures due to past discrimination no longer have to.

For example, SC had to get DoJ approval to institute voter ID laws. Not any more.

What the Court seems to have done is not strike down the idea of "pre-clearance"(Section V of the VRA) directly but Section IV, which sets out the formula for determining whether a locality is covered under the "pre-clearance" requirement. Congress used very old voting data when they last reauthorized the VRA in 2006. It seems the Court is saying Congress needs to use better data.

Expect a big fight on this in Congress and lots of cries of RACISM!

Added: From the ruling (pdf)

...The Fifteenth Amendment is not designed to punish for the past; its purpose is to ensure a better future. To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.

(3) Respondents also rely heavily on data from the record compiled by Congress before reauthorizing the Act. Regardless of how
one looks at that record, no one can fairly say that it shows anything
approaching the “pervasive,” “flagrant,” “widespread,” and “rampant”
discrimination that clearly distinguished the covered jurisdictions
from the rest of the Nation in 1965. Katzenbach, supra, at 308, 315,
331. But a more fundamental problem remains: Congress did not use
that record to fashion a coverage formula grounded in current conditions. It instead re-enacted a formula based on 40-year-old facts having no logical relation to the present day.

Roberts wrote the opinion and was joined by Scalia, Kennedy, Thomas and Alito.

I agree with the outcome here but the logic of the decision is something conservatives should be very wary of. Essentially the Court is saying this is a legitimate exercise of Congress' power under the XV Amendment but they didn't like the method and data Congress used. I don't think it's the role of the Court to tell the people's elected representatives what data they may and may not use in the exercise of their authority.

I'm open to revisiting this conclusion after reading the whole decision but my initial skim of it makes me think this is the kind of judicial activism conservatives usually protest against for good reason.


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posted by DrewM. at 10:23 AM

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