This editorial appeared in the New York Times.
The conservative majority on the Roberts court issued another damaging and intellectually dishonest ruling on Tuesday. It eviscerated enforcement of the Voting Rights Act, in which Congress kept the promise of a vote for every citizen.
But it did not rule on the constitutional validity of the idea that some places have such strong records of discrimination that they must seek federal approval before they may change their voting rules. Instead, the 5-4 ruling usurped Congress’ power and struck down the formula that it has repeatedly reauthorized to determine which states fall into that category.
The Supreme Court invited Congress to rewrite the formula, which has a disingenuous ring. The justices know full well that lawmakers, who failed to expand the coverage formula in 2006, are extremely unlikely to do it now. And so the preclearance rule lies dormant.
The Justice Department is still free to sue jurisdictions over their voting policies after the fact, and should, as often as necessary, because such lawsuits will become an even more important tool to ensure justice. But that is not a long-term substitute for the preclearance rule.
As Justice Ruth Bader Ginsburg noted in her impassioned dissent, such suits have proved to be a less effective tool against politicians determined to find ways to block access to the polls. The jurisdictions covered by the preclearance rule are, for the most part, firmly in that category.
Chief Justice John Roberts, writing for the majority, was right when he said that the formula used to determine the jurisdictions that are covered was written long ago, but, if anything, the formula is too narrow. Roberts was entirely wrong when he wrote that the states can no longer “be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics.”
In 2006, when Congress re- authorized the voting law after extensive hearings, Rep. F. James Sensenbrenner Jr., a conservative Republican from Wisconsin, said the formula was not outdated and “states covered are not unfairly punished under the coverage formula.”
Currently, Ginsburg wrote in dissent that Congress, “with overwhelming support in both houses,” had concluded that the preclearance rule should “continue in force, unabated,” because that would “facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding.” She said that decision was “well within Congress’ province to make and should elicit this court’s unstinting approbation.”
Speaking of racially motivated barriers to voting, Ginsburg said: “Early attempts to cope with this vile infection resembled battling the Hydra. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place.” She added: “When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress’ power to act is at its height.”
The real problem with the invalidated formula, in our view, is that it does not cover all the jurisdictions that have imposed or tried to impose techniques like racially discriminatory voter-identification laws.
Invidious and pervasive voting discrimination has not come to an end, as Roberts suggested with his complaint that “Congress did not use the record it compiled to shape a coverage formula grounded in current conditions.”
Congress has compiled a huge record showing that gerrymandering, use of at-large voting in cities with a sizable black minority to eliminate the power of minority votes and other barriers to equality in voting justifies the clearance formula the court struck down as failing to meet “current needs.”
The future of the Voting Rights Act of 1965 now lies in the hands of President Barack Obama and Congress. If we had a federal government that was not paralyzed by partisanship, this ruling would serve as an inspiration to take action. Congressional Democrats would quickly prepare a more expansive formula, and the Republicans who voted for the old formula just seven years ago would support the new one.
Obama quickly said he was “deeply disappointed” at the ruling and called on Congress to enact a new formula. Tragically, we cannot count on either legislative action or strong follow-through from the White House.