The summer of 2013 was a time of unprecedented judicial decisions. Throughout the months of June and July, the Supreme Court made headlines for its landmark decision to legalize gay marriage. However, the very next day, amidst the celebrations of human rights activists across the country, the Court released another controversial decision; this one wasn’t necessarily positive. The Supreme Court, in a 5-4 decision, struck down the heart of the Voting Rights Act, and established Section 4 of the law as unconstitutional. Their decision freed nine states in question – Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia – from the previous prerequisite of pre clearance, allowing them to change their election laws without advance federal approval. The court was divided upon ideological lines, disagreeing as to whether minorities continued to face voting barriers in states with histories of discrimination. Ultimately, the 5-4 opinion signified the court’s majority opinion that racism in voting was no longer as significant of an issue as it was in the 1970’s. Chief Justice Roberts stated in his majority opinion: “voting discrimination still exists to a certain extent…The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements…the Act imposes current burdens and must be justified by current needs.” However, in the past seven months since the invalidation of Section 4 of the VRA, the Supreme Court’s decision has had severe consequences. Since the nullification of the pre-clearance precedent, those nine states have continued to pass racist voting laws, making one question whether much has really changed since Section 4 was originally established.
Mere hours after the Supreme Court decision was released, Texas passed the voter identification law that had been blocked by the Department of Justice previously. Since then, seven out of the nine states have passed discriminatory voter ID laws as well. These include restricting minority votes by moving polling stations, changing the dates of early voting and requiring federal identification (such as birth certificates or social security numbers) at the booth. Moreover, these restrictions have surpassed racial boundaries and now affect low-income populations as well. For example, North Carolina passed stricter laws that eliminated same day voter registration, shortened the early voting period and specified that ballots cast at the wrong polling station will be thrown out. Not only does this disproportionality affect poor minorities, who were most affected by the changed locations of polling stations, but the fact that North Carolina now has the power to “throw out votes” as they see fit undermines the very basic tenet of American democracy: representation. Furthermore, in both Virginia and Florida, lawmakers now have the ability to check voter ID with data from Systemic Alien Verification for Entitlements (SAVE) data, causing a disproportionate amount of scrutiny to be placed on Hispanic populations, most of which have turned out to be citizens. Although the Supreme Court voted down Section 4 in order to prevent unequal treatment of states, it seems as though states are now treating their citizens unequally.
Moreover, the main problem with the lack of Section 4 is that it makes the VRA and any judicial action against racist voting laws a reactionary measure. As Justice Ginsberg stated in her dissenting opinion: “the focus of the Voting Rights Act had properly changed from “first-generation barriers to ballot access” to “second-generation barriers” like racial gerrymandering and laws requiring at-large voting in places with a sizable black minority….the law had been effective in thwarting such efforts.” Since the passage of the VRA in 1965, the pre-clearance measure has effectively prevented a little over 3000 textbook racist voting laws from being passed in the states by screening every law. However, in its current state, every complaint against a racist voting law, voter ID laws for example, is screened and struck down by the Department of Justice retroactively after the law has been passed. However, this new reactive oversight has allowed for many new laws to slip through the cracks as evidenced by the plethora of new racist laws of the past seven months. The lack of pre clearance has made it so the voices of voters have become increasingly distorted and subject to state politics.
The majority opinion of the court argued that the coverage formula was based on outdated information from the 1940’s, forcing certain states to be subject to pre-clearance based on their actions from decades ago. However, as the past seven months have proven, actions that those states took 70 years ago are still relevant today. Although results from state level election results appear to support that racial disparities in voting have significantly decreased since the passage of the VRA, the narrow focus on raw voting numbers exclude the current racial pandering that is now within the bounds of state jurisdiction. Although the state is entitled to its federalist authority, the rights of the people continue to be degraded and violated, as the only barrier between the people and autocratic racism is now null and void. One hopes that the Supreme Court will revisit the VRA in the near future, and restore pre – clearance; otherwise the nation risks a backslide into racist practices that it has tried to move past since the Civil Rights Movement.