Recently the Supreme Court decided Shelby County v. Holder, also known as the case about the Voting Rights Act (VRA), and the internet exploded. Suddenly, there were articles condemning supreme court justices as racists, and old literacy tests were being circulated, often with messages suggesting that they would be reinstated. The misinformation and fear that has been circulated has left many people confused as to what the future of the VRA will mean for voters going into the future.
The way I see it, there are two main ways that the future of the VRA could go. Congress could replace §4b and §5 of the VRA or they will leave the legislation the way it is now, in the wake of the Supreme Court decision. Either way, there will be little change to the way voting rights behave in the next ten years.
First, a little background.
The Supreme Court has just invalidated §4b and §5 of the Voting Rights Act. The two sections that were struck down were only applicable to 9 states (and a few extra counties). This decision was far from the end of Voting Rights Act. Because the sections that were struck down only applied to 9 states, the decision only affects those areas, which no longer have to get approval from the federal government before they change anything in their voting procedures.
These states have essentially been on probation for fifty years, and this is not the first time that the court has had to look at these issues in the last few years. The previous case was called Northwest Austin Municipal Util. Dist. No. One v. Holder 557 U.S. 193 (2009). In that case, the court found that the areas covered by section 5 of the VRA actually had less discrimination than the rest of the country, and they told congress that the provision “imposes current burdens and must be justified by current needs.” Because Congress had not changed the formula for sections 4b and 5, the court has now struck them down.
The way that the sections of the voting rights act that were struck down worked was based on whether or not the states had disparate voting registration for minorities. In 1965. The formula for what areas deserved extra coverage was set in 1965, and hasn’t been changed since, regardless of what areas of the country most need federal oversight. Even though the VRA has been reinstated at least half a dozen times, Congress has never created a new, dynamic standard to judge where the problems are. In many ways, the old standard did not keep up with the trends and needs of today.
Now, the question is whether or not Congress will replace the sections of the VRA that the Supreme Court struck down. There are some good reasons that congress would want to replace those sections. The last time that the VRA was reissued, the vote was practically unanimous. Congress has an interest in ensuring that there is no discrimination at the polls.
In fact, the Supreme Court acknowledges that there is an important governmental interest in preventing this kind of discrimination.
Even though it might be tempting to say that the Republican Party has an interest in keeping people of color away from the polls (because they overwhelmingly vote Democrat), creating new enforcement and oversight provisions for the VRA may be just the thing that the Republican Party is looking for to revamp its image in the wake of the Supreme Court’s decision on DOMA. By reaching out on an issue like this, Republicans could have a chance to improve their image, especially with young voters and people of color.
If Congress does replace section 4b and section 5 of the VRA, they have the opportunity to make it a vastly superior system to the one that they had in place previously. Because the previous system was tied to statistics gathered in 1965, the system did not have the capacity to change and react to new problem areas, making them subject to heightened scrutiny. If Congress does revamp the struck down sections of the VRA, they could place any area with a disparate number of residents of color and voters of color than similar places. By revamping those sections, Congress could force those jurisdictions to be subject to a review of their policies, making sure everything is on the up-and-up, and forcing change if discrimination is happening at an institutional level.
“Well,” I’ve often heard in the past week, “if Congress does not replace the provisions that the Supreme Court struck down in the VRA then in ten years, no one of color will be able to vote anywhere in the country.”
That is not true. Not even a little bit. The truth is that the VRA still has its most important section: Section 2. Section 2 entitles people to sue their local government for discrimination in their voting procedures, no matter where in the country they are. The provisions that were struck down did not remove that right for anyone. All the Supreme Court has done is make the whole country equal on this subject. The areas that were previously at a heightened level of scrutiny can still be sued for discrimination. The difference is that now those jurisdictions must actually do something wrong first.
People have been getting up in arms over the VRA decision, but in reality, the only people affected are the people living in the nine states that section 4b of the VRA named, and even if Congress never amends the VRA to include new enforcement provisions, the reality is that any truly discriminatory practices will still be outlawed. There won’t be a resurgence in voter literacy tests, and there will certainly not be jurisdictions rushing to enact discriminatory legislation or practices, because they can still be sued. And if there is one thing that will motivate Americans, it’s the threat of a lawsuit.