Who's Killing the Voting Rights Act, Congress or the Supreme Court?

By Associate Clinical Professor Jessica Levinson

This op-ed was originally published by Pacific Standard Magazine
In a much-anticipated case decided Tuesday, the Supreme Court concluded that Section 4 of the Voting Rights Act, a landmark civil rights law originally enacted a half century ago to reverse the rampant disenfranchisement of Southern blacks, is unconstitutional. The VRA itself is not dead, but a key section of it is undoubtedly on life support. And while a 5-4 court majority wielded the weapon, know that Congress' inaction gave the court an excuse to take it up.

If you've been following the saga of pre-clearance, you may have expected to read that Section 5--not Section 4--was declared invalid. Section 5, after all, has gotten most of the press. Allow me to explain.

WHAT IS THE VOTING RIGHTS ACT?

Congress passed the VRA in 1965 in response to pervasive discrimination against African American voters. This landmark piece of legislation contains two key provisions.

The first is Section 2, which provides a general prohibition against any voting procedure or practice that discriminates on the basis of race, color, or membership in certain language minority groups. Section 2 was not at issue in Shelby County v. Holder but likely will begin to bear a much heavier weight thanks to the Supreme Court declaring Section 4 invalid.

Shadowboxing and Unintended Consequences

By Associate Professor Justin Levitt

This commentary was cross-posted from SCOTUS blog.

The Court today struck down a statute that did not exist. And it did so at the request of jurisdictions seeking a little extra "dignity" -- who might end up with less dignity as a result.

Formally, the Court struck the 2006 reauthorization of 42 U.S.C. § 1973b -- Section 4 of the Voting Rights Act, and a central part of the Act's preclearance regime. Its more famous counterpart, Section 5, requires certain jurisdictions to submit election changes for federal review, to ensure that they do not harm minority voting power. Section 5 sets the "what." Section 4 sets the "where," delineating which jurisdictions receive Section 5′s special medicine.

But the Section 4 that the Court struck is a curious creature -- as I'd feared, a simulacrum. The Court branded it the rote reenactment of a "formula based on 40-year-old facts having no logical relation to the present day."

This stale formula is not the coverage formula actually in the law. The formula started with 1960s and 1970s registration and turnout figures, locating the broken democracies connected to the worst discrimination. But it did not end there. It allowed any jurisdiction that had demonstrated consistent improvement in minority opportunities, without backsliding, to "bail out" of coverage.