The Supreme Court on Tuesday ruled a key provision of the Voting Rights Act unconstitutional—a decision that earned immediate condemnation from national Democrats and voting rights advocates, who worry it will hinder efforts to combat voting discrimination.
In what was a 5-4 decision, the court’s opinion in Shelby County v. Holder held that Section 4 of the VRA is unconstitutional. Section 4 establishes the criteria for which states and localities must have changes in election law precleared by the Department of Justice. Writing for the majority, Chief Justice John Roberts said the formula, while applicable 50 years ago, is now outdated.
“Coverage today is based on decades-old data and eradicated practices,” Roberts wrote. “Congress based its coverage formula on that distinction. Today, the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”
Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas joined Roberts in the majority.
While Section 5 of the VRA survives, there’s no way to trigger preclearance unless Congress comes up with a new coverage formula—something most political observers think is unlikely.
“It’s going to be very tough for Congress to respond,” predicts Justin Levitt, a professor at Loyola University Law School. “What this is really going to take is a lot of mobilization in minority communities. The most promising path may be unprecedented minority turnout in certain areas and that could motivate Congress to action.”
So what does the ruling mean for campaigns in the states and localities covered under Section 5 of the VRA? In the short-term, the focus will be on jurisdictions still dealing with preclearance issues, or in places where preclearance has been denied.
“That all comes back into the mix now,” says Sean Cairncross, a partner at Holtzman Vogel Josefiak and a former chief counsel at the Republican National Committee. “That’s really the most immediate impact.”
One of those places is Texas, which had its voter ID law denied preclearance by the Justice Department. That led the state to file suit in federal court. The state’s Republican Attorney General Greg Abbott used Tuesday’s ruling to argue the state’s voter ID law should now go into effect immediately.
In Virginia, another Section 5 state, Republican Gov. Bob McDonnell said the decision leaves the state’s recently-passed voter ID law in “limbo.” In an interview with WTOP Radio, McDonnell said that “[u]ntil the Congress passes a new formula, there’s nothing for us to submit to preclearance.”
It was one of the immediate concerns expressed by some Democratic consultants in the wake of the ruling—the potential for localities, for which Section 5 has been an effective deterrent, to move forward with tough voter ID and other laws that Democrats fear could depress minority turnout. In turn, those voter ID laws could alter the dynamic in state and local elections across a number of states.
“The court has cut the heart out of the Voting Rights Act,” says former Texas Democratic Rep. Martin Frost, who led redistricting efforts for national Democrats during the 2000 election cycle.
Dissenting were the high court’s more liberal members—Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Ginsburg wrote the dissent, arguing “the very success of [Section 5] of the Voting Rights Act demands its dormancy.”
“It was the judgment of Congress that ‘40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution,’” Ginsburg wrote.
National Democrats reacted swiftly to the court’s ruling on Tuesday, working to motivate the party’s base and collect some emails in the process. Within an hour of the ruling the Democratic National Committee sent out an email, penned by Donna Brazile, urging supporters to submit their contact info to help Democrats “ensure everyone has the right – and the ability – to vote.”
In a statement, President Obama said he was “deeply disappointed” in the court’s ruling.
While Section 5 of the VRA is out of commission thanks to the ruling, legal experts note that Section 2 is still very much alive. That allows plaintiffs to sue in federal court over intentional discrimination in jurisdictions.
“Voter ID laws are the place we’d look at first in terms of immediate impact,” says Michael McDonald, an elections expert at George Mason University. “But I wouldn’t be surprised if we saw a new round of litigation on Section 2 claims.”
The longer-term implications will take some time to tease out, but looking ahead to next year, Democratic media consultant John Rowley, who counts a number of southern Democrats among his clients, thinks his party could use the decision as a motivator for Democrats in 2014’s midterm elections.
“This could be a kick in the pants in a couple states long term on redistricting, but could be a shot in the arm for voter turnout in 2014 and beyond,” says Rowley. “It's always a challenge to motivate voters who are not angry white male Republicans in an off year. This will help in 2014.”
As for whether the ruling could serve as motivation for the Democratic base next year, Martin Frost thinks it's too soon to tell. But he says the ruling should send one message loud and clear to Democratic voters: Elections have consequences.
“Once again this establishes that elections make a real difference,” Frost says. “When the court decided Bush v. Gore it paved the way for George W. Bush to appoint two justices that basically decided this case.”