The Voting Rights Act of 1965 was critical in making American democracy a reality. Before the law passed, disenfranchisement was the order of the day in some states and the law was intended to prevent citizens from being unjustly denied their right to vote.
On 6/25/2013, the Supreme Court voted 5-4 and ruled that Section 4 of the VRA is unconstitutional. Section 4 specifies which states must get federal preclearance before making changes to voting procedures. Not surprisingly, the states covered by Section 4 were predominantly southern states with an established history of disenfranchising minority voters.
Chief Justice Roberts’ main argument against Section 4 focused on his claim that it is “based on 40-year-old facts having no relationship to the present day.” Roberts does accept that Congress can determine which states require preclearance, but this must be based on current data. The court left Section 5, which defines the preclearance requirement, intact. However, by striking down Section 4 the court has neutralized Section 5. This is because Section 5 now applies to no states. Congress can, however, pass a new bill to replace Section 4. Justice Thomas wanted to strike down Section 5 as well and it seems possible that if congress did pass a new bill to replace Section 4, then the court would strike down Section 5 as well (assuming the make-up of the court remains the same). However, it seems unlikely that this will happen-given the nature of congress, the chance of such a bill passing is rather low.
By striking down Section 4, the court has not given states a free hand to do whatever they wish in regards to voting. That is, all the other laws governing voting rights remain intact. The main impact is that the states once covered by Section 4 no longer need to get federal approval to make changes in regards to such matters as voter ID requirements or early voting. Such changes can, obviously enough, still be challenged-but only after the changes have taken place. The obvious concern is that this opening will be used to disenfranchise voters using methods that will be found to be illegal, but only after the damage is done.
Roberts’ line of reasoning does have a certain appeal. The gist of his argument is that the federal intrusion into the states in question is based on old data (from 40 years ago) and this data fails to warrant such an intrusion. Somewhat ironically, those who agree with Roberts’ point to the election of Obama (especially the turnout of black voters in the states in question) as evidence that there is no longer a need for Section 4. The court has previously upheld the VRA on the grounds that it was needed to address the efforts of Southern officials to disenfranchise black voters. Since, according to Roberts, there is only old data to support this need, the intrusion is no longer warranted. Crudely put, the argument is that since the South has changed, there is no longer a justification for treating it as if it was acting in the old, bad ways.
However, there are some concerns with Roberts’ reasoning. One obvious point of concern is that Roberts’ argument seems to be that since the data is old, we should assume that the Southern officials no longer have any intention to disenfranchise minority voters. Thus, Section 4 is unconstitutional. However, it is rather a leap from the data being old to the inference that the VRA has permanently solved the problems it was created to address. Also, given the attempts to disenfranchise voters it seems reasonable to think that the problem still remains.
A reasonable reply to this is that it does not need to be assumed that the South is fully reformed in terms of voting rights. What is needed is merely the fact that the data is out of date and hence can no longer warrant a continued disparity between the states. If a bill can be passed using current data, then the intrusion could be justified once again. However, it seems likely that no such bill will be passed and thus this aspect of the VRA has been nullified.
My own view is somewhat conflicted. On the one hand, having a disparity between the states in terms of what they can and cannot do without federal approval seems unfair. After all, one may ask, why should Massachusetts have more liberty than Texas? On the other hand, there is the principle of relevant difference: if a state is significantly different from another state in regards to voter disenfranchisement, then a difference in treatment can be justified on this ground. While the notion of states’ rights does have some appeal, it seems self-evident that an appeal to states’ rights cannot be used to warrant denying an individual his or her legitimate individual rights. That is, a state does not have the right to deny the rights of individual citizens just because it is a state.
As might be guessed, I tend to favor having a consistent system in regards to voting rights that does not single out states but, at the same time, guarantees that individuals will not be robbed of their right to vote. To this end, having nationwide laws about relating to voting would seem to be sensible. As far as the justification, the obvious approach would be to focus on the federal elections-this would warrant a national approach. I also agree that legitimate concerns about voter fraud should be addressed by such a nationwide policy.
Getting back to the main issue, I am rather concerned about the impact of the ruling. In general, I suspect the effect will be a significant increase in efforts to disenfranchise voters in various ways (as we saw with the voter ID proposals and related endeavors to suppress voting). While these efforts will be met with after the fact law suits, this will involve fighting a multitude of small battles after damage has already been done. This ruling, I think, is a bad one for those who value the right of all citizens to vote.