Today is a sad day for the civil rights movement: Section 4 of the Voting Rights Act has been struck down by the Supreme Court in a 5-4 vote. Those who follow the Supreme Court will not be at all surprised by how the voting went: the mostly conservative Justice Anthony Kennedy joined the very conservative Justices Thomas, Scalia, Alito and Chief Justice Roberts, who has foreshadowed this move for some time, in striking down this key provision of the Voting Rights Act. The four more liberal justices, Bader-Ginsburg, Breyer, Kagan and Sotomayor, voted to maintain the Voting Rights Act. Here are 5 facts to know about the Voting Rights Act, and what happens next:
1. The Voting Rights Act was signed into law in 1965 by President Lyndon Johnson, and was considered the crowning achievement of the civil rights movement. The Act designated certain states and counties that had to pre-clear any changes to their voting laws to ensure that they did not disenfranchise minority groups.
2. What Chief Justice Roberts objected to was that the law was written with 1960s racism in mind, and that doesn’t apply anymore.Writing for the majority, Roberts explained:
“In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”
3. Congress reauthorized the Voting Rights Act almost unanimously in 2006. Congress extended the Voting Rights Act in 2006 on votes of 98-0 and 390-33. You probably wouldn’t get that level of approval on a resolution that gravity exists. Justice Scalia brushed off this consensus in an earlier statement, reasoning that if everyone agrees, there must be something wrong.
4. Despite that consensus, Congress probably won’t do anything about it now. Democrats will likely try to move a bill at some point, and it probably won’t get anywhere. Republican opposition prevents nearly anything big and consequential happening in Congress. Reinstating the Voting Rights Act will be especially tough, because the Act acknowledges that racism exists, and should be dealt with. If anything can get through Congress, it will have to be a version of the Voting Rights Act that does not identify specific areas of the country that are especially racist. This is in theory a great time for Congress to take on the problem of gerrymandering, but gerrymandering keeps a large percentage of Congress safe in their jobs, so good luck with that.
5. Part of the Voting Rights Act remains intact, but decommissioned. The Supreme Court did not touch Section 5 of the Voting Rights Act, which reviews changes to voting law in the districts covered by Section 4, which was struck down. With no districts to cover, however, Section 5 can’t do anything until Congress establishes some sort of jurisdiction for it to cover. Section 2, which bans any race-based voting requirement, was untouched by the Supreme Court decision (and applies nationwide). Section 2 does not involve any automatic preclearance requirement, but cases may be brought under Section 2 on an individual basis.
One possibility is to return to an amendment suggested in the 2006 reauthorization of the Voting Rights Act to make the criteria for review based on low voter turnout. The New York Times created an excellent infographic to show what this would look like. This would have a hard time making it through Congress (see above), but it would be a way of establishing criteria not based on racism, but that also doesn’t just attempt to cover the entire country, which would be costly and unnecessary. It may be simply an idea to hold on to in the face of bad news, but at least it’s that.