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Supreme Court makes historic voting rights law harder to enforce

Bill Mears and Greg Botelho | 6/26/2013, 4:41 a.m.
Barbara Arnwine, President & Executive Director of the national Lawyers' Committee for Civil Rights Under Law ... says the SCOTUS ruling on voting rights undercuts a "great preventative stop sign" against voter suppression. She talked to the press on Tuesday, June 25, 2013 after the SCOTUS reached their decision. Paul Courson/CNN

— In her dissenting opinion, Justice Ruth Bader Ginsburg pointed out that Congress passed the latest installment of the Voting Rights Act with "overwhelming bipartisan support," saying the representatives legitimately exercised their constitutional powers in doing so.

But the ruling decision effectively overrides that congressional action, affecting the Voting Rights Act in several important ways:

• Section 4, the part of the law that was struck down, is the coverage formula the federal government uses to determine which states and counties are subject to continued oversight. Roberts said that formula from 1972 was outdated and unworkable.

• Section 5 of the law effectively cannot be enforced, because it relies heavily on the coverage formula. Civil rights groups say Section 5 has been an important tool to protect minority voters from local governments that would set unfair, shifting barriers to the polls. Without it, they warn, the very power and effect of the entire Voting Rights Act would crumble. But opponents of the provision counter it should not be enforced in areas where it can be argued that racial discrimination no longer exists.

• Under Section 5, any changes in voting laws and procedures in those covered states -- including much of the South -- had to be "precleared" with Washington. Such changes could have included something as simple as moving a polling place temporarily across the street.

In his ruling opinion, Roberts faulted Congress for not updating "the coverage formula" last decade to reflect changing times.

"Its failure leaves us today with no choice but to declare Section 4 unconstitutional," he wrote. "The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance."

Overdue or 'outrageous'?

The Obama administration says states have gotten out of Section 5. In recent years, 31 cities and counties and Virginia successfully petitioned to be exempt from the preclearance requirements, though the rest of the state remains under federal oversight.

The Justice Department on Monday announced that Hanover County, north of Richmond, would also become exempt.

Shelby County -- which is outside Birmingham -- did not make such a request, even though it did oppose Sections 4 and 5 on legal grounds. Some 11% of its residents are African-American, compared with 28% statewide.

Some conservative groups have argued that "ancient formulas" are being applied today, not to erase discrimination, but to benefit a particular political party. Some liberal activists counter that Section 5 and federal oversight are being demonized by many on the right for purely partisan gain, and to divide Americans again over race.

Whatever their opinion on the matter, figures on both sides of the debate agreed that Tuesday's ruling is significant.

The American Civil Liberties Union's Laughlin McDonald said it poses a "real challenge to Americans' fundamental right to vote."

NAACP President Ben Jealous called the decision "outrageous," because it makes minority voters "more vulnerable to the flood of attacks we have seen in recent years."

The law had been working in preventing "discriminatory voting changes," Attorney General Eric Holder said.