The U.S. Supreme Court in a 5 to 4 Decision, split along party lines, undermined the heart of the Voting Rights Act which has helped protect voters from discrimination since its passage in 1965.
The Roberts Court said that the information was outdated in Section 4 which outlines the methodology of Section 5 of the Voting Rights Act. Instead of urging Congress to update Section 4, while still keeping Section 4 and 5 in full force, the Roberts Court decided to effectively stop Section 5 preclearance for current states (with a troubling history of discriminatory practices at the polls) by saying Section 4 is “outdated”. Justice Roberts basically said, Congress must redo Section 4 in order to make the Section 5 Preclearance in effect again.
Justice Ruth Bader Ginsberg Dissent calls out the “hubris” of the Roberts Majority on the Voting Rights Act
In a scathing and passionate dissenting opinion, Justice Ruth Bader Ginsberg said:
“Demand for a record of violations equivalent to the one earlier made would expose Congress to a catch-22. If the statute was working, there would be less evidence of discrimination, so opponents might argue that Congress should not be allowed to renew the statute. In contrast, if the statute was not working, there would be plenty of evidence of discrimination, but scant reason to renew a failed regulatory regime.”
“Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story. See supra, at 18–19. Without even identifying a standard of review, the Court dismissively brushes off arguments based on “data from the record,” and declines to enter the “debat[e about] what [the] record shows”…One would expect more from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation.”
Justice Ginsberg then cited recent examples of outright discrimination against minorities attempted since the passage of the Voting Rights Act in 1965. This shows how important it is to keep the VRA in full force:
- “In 1995, Mississippi sought to reenact a dual voter registration system, ‘which was initially enacted in 1892 to disenfranchise Black voters,’ and for that reason was struck down by a federal court in 1987.”
- “In 2006, the court found that Texas’ attempt to redraw a congressional district to reduce the strength of Latino voters bore ‘the mark of intentional discrimination that could give rise to an equal protection violation,’ and ordered the district redrawn in compliance with the VRA…In response, Texas sought to undermine this Court’s order by curtailing early voting in the district, but was blocked by an action to enforce the §5 pre-clearance requirement.”
Justice Roberts History of Efforts to Roll Back the Voting Rights Act
During Justice Roberts 2005 nomination proceedings before the Senate, there was evidence that John Roberts was and is no friend of civil rights and voter protections. As reported by Democracy Now:
Massachusetts Senator Edward Kennedy said Thursday the documents made public so far indicate Roberts holds a “rather cramped view of the Voting Rights Act.” Aides to Kennedy distributed materials that Roberts drafted while at the Justice Department and White House counsel’s office during the Reagan administration. The documents show Roberts expressing criticism of an extension of the voting rights act, support for a court ruling narrowing the civil rights requirements on colleges, and doubts about a law to combat discrimination in housing.
The Democracy Now program in 2005 revealed more details about John Roberts negative attitude towards the Voting Rights Act and his express desire to limit its ability to protect voters:
RALPH NEAS (President of People for the American Way): Good morning. From 1981 to 1993, the Reagan and Bush administrations did everything possible to turn back the clock on civil rights protections for women, for minorities, for people with disabilities and older Americans. It looks more and more with every passing day and with every passing revelation that John Roberts was at the epicenter of all of these efforts during the 1980s and early 1990s. The American people have a right to know precisely what his role was.
AMY GOODMAN: Looking at an A.P. piece, you know, these articles are coming out as these thousands of documents have been released, so the White House says they’re not going to release any when he was — any more under Kenneth Starr, when he was Deputy Solicitor General in the first Bush administration. But it says — and this refers to Reverend Jesse Jackson talking about the 1965 Voting Rights Act, “Congress was considering an extension of the 1965 Voting Rights Act against the backdrop of the Supreme Court ruling that held proof of intent was needed to demonstrate someone’s rights had been violated.” Following up on Juan’s point, “House democrats sought legislation to change so election results would be sufficient. In a draft opinion article he sent to a county commissioner in San Antonio, Roberts wrote, ‘The proposal would not simply extend the existing and effective Voting Rights Act, but would dramatically change it. It’s not broken, so there’s no need to fix it.’” In other documents, Roberts, then working in the White House, wrote that legislation designed to overturn a different Supreme Court ruling would radically expand the civil rights laws to areas never before considered covered. He recommended against it. In a third, he wrote the administration could go slowly on housing legislation without fearing political damage…
An article in Mother Jones, “Chief Justice Roberts’ Long War Against the Voting Rights Act,” clearly reveals that Justice Roberts has been a “critic of the Voting Rights Act for 30 years.” While in his 20s, John Roberts worked for the Reagan Administration in its “crusade against the Voting Rights Act.”
Chief Justice John Roberts of the U.S. Supreme Court was deeply involved in the Reagan administration’s efforts to undercut the effectiveness of the Voting Rights Act. Memos in the 1980s from John Roberts when he worked as a lawyer in the Reagan administration’s Justice Department, reveal Roberts recommendations on how to curtail the VRA. His efforts at that time failed. However, he has been patient all these decades since the 1980s. Now as Chief Justice of the Supreme Court, he fulfilled his previously thwarted goal under Reagan — to stop the Voting Rights Act from being effective.
Justice Ginsberg in her dissent calls out the “hubris” of the Supreme Court she sits on lead by Justice Roberts. In addition, she says the Court was wrong in undercutting Congress’ reauthorization in 2006 of the Voting Rights Act.
High Court Strikes Down Key Provision of Voting Rights Act
How will history view this decision? Was the decision tainted by partisan politics? Yes, absolutely. And, as can be seen by Justice Roberts work in the Reagan administration in the 1980s, it is clear he has wanted to roll back the Voting Rights Act for over 3 decades.
Can Congress Design a New Voting Rights Act Provision?
The Roberts Court decision will make it harder to stop discriminatory laws that primarily Red states have passed or are trying to pass that set up various roadblocks for Americans to cast a vote.
The Roberts Court’s decision also put up a roadblock to the recent reauthorization of the Voting Rights Act in 2006 by Congress for another 25 years (until 2031). In 2006 Republicans and Democrats came together to reauthorize this landmark civil rights act. George W. Bush applauded the unanimous decision of Congress and the Senate to reauthorize the Voting Rights Act. Yet, it is clear from Justice Roberts that he was looking for the opportunity to make it difficult to implement the preclearance rule of Section 5 of the VRA.
The issue now goes back to Congress. Will Republicans and Democrats be able to rise above their partisan ideologies to come together to protect the vote of all Americans? What could happen now with our next elections?
Beware of ALEC and its Voter Suppression Tactics & Laws
The American Legislative Exchange Council (ALEC) promotes template legislation to Block the Vote through various means:
1) Strict Voter ID Laws that require voters to spend a lot of time and money to get the proper documents to get Voter ID cards or to show they are citizens eligible to vote.
2) Onerous efforts to prevent students from voting in the city and state where they go to school. One state now has pending legislation to force families to pay taxes if their child wants to vote at a college town outside the family home.
It is clear that Congress has an opportunity to expand protections for voters in not only the current states covered under Section 5 of the VRA, but in other states as well. The fact that Texas is poised to pass heinous Voter Suppression Voter ID laws is clear that the Voting Rights Act is still a necessary instrument to protect the right to vote for all people from unnecessary obstructions.