A crucial section of the Voting Rights Act of 1965 was struck down by the United States Supreme Court on June 25th, 2013. The section, known as the preclearance clause, stated that former confederate states were required to get any new laws pertaining to voting approved by congress before they were allowed to be implemented. The law was created in response to the Jim Crow era south and the restrictions put in place to keep black people from voting. The final vote was 5-4 with Justices Roberts, Scalia, Kennedy, Thomas, and Alito in the majority and Justices Ginsburg, Breyer, Sotomayor, and Kagan dissenting. The Majority opinion was written by Chief Justice Roberts.

The opinion of the Supreme Court states that , “The Voting Rights Act of 1965 was enacted to address entrenched racial discrimination in voting.” and discusses section 2 of the Act, “which bans any ‘standard, practice, or procedure’ that ‘results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color.’” It goes on to state the the issue of putting in place racially discriminatory voting laws, “is not the issue in this case.” The “issue” deals specifically with the preclearance clause, which the opinion says was, “initially set to expire after five years,” but had been “reauthorized several times.” The latest being in 2006, extending the act for an additional 25 years. This extension led Shelby County, Alabama to sue the United States Attorney General Eric Holder. They intended to challenge the constitutionality of the provisions continuation. The opinion states that, “The District Court upheld the Act, finding that the evidence before Congress in 2006 was sufficient to justify reauthorizing §5 and continuing §4(b)’s coverage formula. The D. C. Circuit affirmed. After surveying the evidence in the record, that court accepted Congress’s conclusion that §2 litigation remained inadequate in the covered jurisdictions to protect the rights of minority voters, that §5 was therefore still necessary, and that the coverage formula continued to pass constitutional muster.” The case was then argued before the Supreme Court, which held that Section 4 of the Voting Rights Act of 1965, the preclearance clause, was unconstitutional.

In justifying the striking down of the Act, the Supreme Court said that, “the Voting Rights Act ‘imposes current burdens and must be justified by current needs’ and concluded that ‘a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.’” Essentially they believed that while restricting the power of southern states to create voting laws may have been necessary at the time the Act was originally written, there is not enough evidence that this particular section of the Act still needs to be in place today.

The opinion of the Supreme Court describes the preclearance clause as being, “a drastic departure from basic principles of federalism. And §4 of the Act applied that requirement only to some States—an equally dramatic departure from the principle that all States enjoy equal sovereignty.” Though it concedes that at times, “exceptional conditions can justify legislative measures not otherwise appropriate.” “however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.” It points to the extremely low voter turnout among black voters in the south at the time being cause for concern and was believed to be a direct result of the restrictive laws put in place by legislators in the south, and thus the Act was needed. It then states that, by contrast, “By 2009, the racial gap in voter registration and turnout [was] lower in the States originally covered by §5 than it [was] nationwide.” and that, “Census Bureau data indicate that African American voter turnout has come to exceed white voter turnout in five of the six States originally covered by §5, with a gap in the sixth State of less than one half of one percent.” Likely as a result of the Act itself.

So it had been established that the exact circumstances that existed at the time the law was enacted no longer exist in their original form, but did the need for the clause still exist even if their original purpose had perhaps been fulfilled? The opinion of the Supreme Court states, “At the same time, voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements.” This now raises a new issue.

According to the fifteenth amendment to the United States Constitution, the right to vote cannot be denied to someone or restricted based on race, and it gives congress the power to enforce that amendment by way of “proper legislation”. This case is essentially an argument over the definition of “proper”. This becomes a very difficult question as Jim Crow laws would often require literacy tests or poll taxes that did not explicitly say that African Americans were barred from voting, but it could be proven that these laws disproportionately affect African American people. The Supreme Court opinion goes into detail as to why congress decided to create the preclearance clause rather than take action after these restrictive laws had been passed. It says, “Congress passed statutes outlawing some of these practices and facilitating litigation against them, but litigation remained slow and expensive, and the States came up with new ways to discriminate as soon as existing ones were struck down.” Eventually congress concluded that basically the former confederate states could not be trusted with the power to dictate voting laws, and federal action was necessary to keep them from discriminating against African American voters. “Former Confederate” states were not specifically mentioned in section four of the Act, but as described in the opinion of the Supreme Court, “Other sections targeted only some parts of the country. At the time of the Act’s passage, these ‘covered’ jurisdictions were those States or political subdivisions that had maintained a test or device as a prerequisite to voting as of November 1, 1964, and had less than 50 percent voter registration or turnout in the 1964 Presidential election.” This was a subversive way to target southern states without directly pointing out half the country. These states (and sometimes counties) could only then get permission from congress to enact voting laws if they could prove, “that the change had neither ‘the purpose [nor] the effect of denying or abridging the right to vote on account of race or color.’” according to the opinion.

“Sections 4 and 5 were intended to be temporary; they were set to expire after five years.” states the opinion of the Supreme Court. This provision was written into the original Voting Rights Act. Instead of expiring after five years, the sections of the Act were extended many times by congress. Its extension in 1970, “extended the coverage formula in §4(b) to jurisdictions that had a voting test and less than 50 percent voter registration or turnout as of 1968. Voting Rights Act Amendments of 1970, §§3–4. That swept in several counties in California, New Hampshire, and New York. Congress also extended the ban in §4(a) on tests and devices nationwide.” This extended the reach of the Act to not just the southern states, but into northern states as well. Sections 4 and 5 of the Act were extended several more times over the following decades, often for even longer lengths of time.

With each re-upping of the preclearance clause, Congress expanded the meaning of the original language banning the use of any “test or device” to restrict voting. Eventually, with expanding definitions, almost every state was covered in the Act’s jurisdiction. Each reauthorization was upheld by the Supreme Court. After the latest extension of the clause in 2006, the definition was expanded once again to forbid voting changes with “any discriminatory purpose.” Once again challenged, the Supreme Court concluded that it could not find the Act constitutional in its current form. The majority believed that, “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” In other words, the Act was created to address a very specific problem in very specific areas, and in its original form was constitutional. Over the years, the Act had been redefined and retooled so much that its jurisdiction had blown up to include a much broader area and cover a much broader range of topics than originally intended. Because evidence could no longer be provided that the Act was serving the specific purpose it was designed to do at its inception, the Supreme Court ruled that it was now, in its most recent form, unconstitutional.

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