(Special to The Root) — Three years ago I wrote a piece for The Root entitled, “Supreme Court Saves Voting Rights Act and Itself.” The occasion was the court’s recent consideration of the constitutionality of Section 5 of the Voting Rights Act, which Congress had reauthorized by an overwhelming bipartisan majority in 2006. In that 2009 case the court declined to strike down the coverage formula of Section 5 of the act.
The Voting Rights Act of 1965 has been described as the “crown jewel” of civil rights legislation. Its passage was secured with the blood of courageous activists throughout the South, like Fannie Lou Hamer, who endured beatings simply for trying to register to vote in Mississippi; Medgar Evers, who was murdered by a white supremacist; students James Chaney, Andrew Goodman and Michael Schwerner, who went missing at the start of Freedom Summer 49 years ago; and black voters in Selma, Ala., who were beaten on the Edmund Pettus Bridge.
It’s hard to imagine a piece of legislation with a greater pedigree and for which more people have fought and died than the Voting Rights Act. So when the court resisted calls to weaken the act in that 2009 case, I argued that Chief Justice John Roberts, then in office only four years, wisely chose not to take the risk of tarnishing the court’s legitimacy — and his own as a new chief — by usurping Congress’ authority and gutting one of the most important civil rights statutes ever enacted.
But I also suggested that the decision preserving the act’s core provisions had been carefully stitched, weaving together an uncertain majority. The implication was that one day soon, the conservative majority on the court might be emboldened enough to do real harm to the act.
That day has come. On Tuesday, in a 5-4 decision in Shelby County, Alabama v. Holder (pdf), the Supreme Court struck down a provision of the act. Under Section 5 of the Voting Rights Act, Congress designated particular jurisdictions in the United States that must obtain permission from a federal authority (either the Department of Justice or a federal court) before they enact voting changes that might have the effect of discriminating against minority voters. The jurisdictions are largely located in the South, although several districts in New York and parts of Alaska and Arizona are included as well.
The formula that designates the jurisdictions to be covered is set out in Section 4 of the act. The court has declared that formula and Section 4 unconstitutional. This essentially hollows out the foundation of Section 5.
The court’s decision is a shocking usurpation of power from Congress, which in 2006 held hearings over the course of nine months, heard from almost 100 witnesses and amassed a 15,000-page record. The result of Congress’ searching inquiry was its determination that voting discrimination continued in the jurisdictions identified in Section 4. In fact, the record was replete with examples of voting discrimination in those areas, as Justice Ruth Bader Ginsburg set out Tuesday in her dissent from the court’s opinion.