Viewpoint: Voting-Rights Decision Spells the End of Fair Elections

It also nullifies one of the most important pieces of civil rights legislation in U.S. history

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JIM LO SCALZO / EPA

Ryan Haygood, the director of the NAACP Legal Defense and Educational Fund, gathers with civil rights activists outside the Supreme Court to protest the decision to strike down part of the Voting Rights Act of 1965 in Washington on June 25, 2013

The Supreme Court delivered a sucker punch to fair elections today, striking down a key part of the Voting Rights Act. It is a ruling that will make it much easier for partisan election officials and legislators to rig the voting system — and a lot harder for ordinary voters to participate in democracy.

The ruling is also a huge Supreme Court power grab. How big? In 2006, Congress reauthorized the Voting Rights Act by a vote of 98-0 in the Senate and 390-33 in the House (and President George W. Bush signed it into law). Now, five Justices have swept away the decision of all those elected leaders — over the vociferous dissent of four other Justices.

At his confirmation hearing, Chief Justice John Roberts — who wrote today’s majority opinion — famously declared that as a Justice, “my job is to call balls and strikes and not to pitch or bat.” But in nullifying one of the most important pieces of civil rights legislation in U.S. history, he picked up a bat and swung for the bleachers.

(MORE: In Narrow Decision, Supreme Court Sets High Bar for Race-Based Affirmative Action)

The part of the Voting Rights Act that the court held unconstitutional (Section 4) was a critical one: the formula that specifies which particular states and localities must clear significant voting changes in advance with the Justice Department. That process — “preclearance” — ensures that unfair voting rules can be stopped before they are allowed to interfere with actual elections.

An example of why it’s needed: in 2001, the all-white leadership of Kilmichael, Miss., abruptly canceled the town election when it looked like voters might elect the first black mayor. Using the Voting Rights Act, the Justice Department required that the election go forward — and a black mayor was elected. That was only one of more than 700 discriminatory voting changes the Justice Department blocked from 1982 to 2006.

The Supreme Court’s majority was troubled by the specific states and localities that the Voting Rights Act’s “preclearance” rules apply to. Why Alabama and not Vermont? Why Brooklyn and the Bronx, but not Lincoln, Neb.? The simple answer is that these are the jurisdictions Congress chose after careful consideration. It held 21 hearings and heard from scores of witnesses — it produced a 15,000-page record — before reauthorizing the law in 2006. Without doing any of that work, five Justices have said they know better.

Now that the formula has been thrown out, the whole process of preclearance is effectively thrown out as well. In theory, Congress could come up with another formula — and a list of states and localities — that the Supreme Court would find constitutional. But it would be a legislative nightmare for Congress to try to do that — and no one expects that to happen anytime soon.

(MORE: TIME Looks Back: The Assassination of Martin Luther King Jr.)

So what does the gutting of the Voting Rights Act mean for American democracy? It will be easier for bad-apple election officials to revive classic vote-suppression tactics — like moving polling places at the last minute, so voters cannot find them, or getting eligible voters off the rolls. And it will be easier for state legislatures to draw district lines to divide up minority voters and dilute their power at the polls.

The majority dismisses all these very real concerns, arguing that “things have changed” since the bad, pre-civil-rights-era days. Of course, even if that were so, it would not mean that we don’t need the Voting Rights Act. As Justice Ruth Bader Ginsburg wrote for the dissenters, that sort of logic is “like throwing away your umbrella in a rainstorm because you are not getting wet.” Now that the Supreme Court has gutted the Voting Rights Act, we should get ready for an antidemocratic downpour.

MORE: Top 10 American Protest Movements

44 comments
lazarus00000
lazarus00000

The director of the NAACP is "Outraged" at the culmination of the zimmerman trial. Nevermind that the system worked and stopped the racially driven attack on zimmerman and his family since the beginning. This is relevant to this article in that SOME people will go to any extreme to circumvent the laws for personal gain. The president tried to divide the nation directly, for what purpose I do not know, by coming out to bring racial profiling against Zimmerman. The "Black Caucus" jumped in to stir the fires of racism and we are seeing the Mob mentality of black racist gain momentum.

When the Black Panthers posted the $10,000.00 bounty on Zimmerman's head, and there was no negative response from the FBI or the Press, I wondered how the same scenereo would have panned out if the KKK had posted a bounty on a black man?

People are trying to play down the Black Panthers, but here in Dallas 2 months ago, we saw them on the evening news in a neighborhood where police had shot a perp.

The Panthers had stirred up what looked like about two thousand peopelin the streets and there were the panthers in their camo geared for war. That story was killed the nexted day.

There are double standards being played and this, my friends in Racism, Black Racist coming from the "On High" places of power.

Lazarus 

j45ashton
j45ashton

Heather...dead giveaway you're a Republican,  when in doubt resort to name-calling.  In fact, even when not in doubt resort to name calling.  In fact, why bother relying on anything else?  Since we have nothing else to offer...first and foremost, just go for it & crank up the name-calling.

WalterEngler
WalterEngler

This is NOT the end of fair voting.  If anything, maybe just maybe Congress can look at this broken law and come up with something better. 

Fact:  Section 4 was tossed out because it required measuring states and other governmental bodies against figures from 1972.  That's right, 40 years ago. 

Fact:  One of the measurements in the law was if 50% or less of possible voters voted in the Presidential election.  Now when you use 1972 figures, not a lot of states failed to hit that mark.  But what would happen if the law was updated to say year 2000 figures?  38 States would now fall under the law and be subject to it (overall only 50.3% of eligible voters voted in the 2000 election nationally, so a lot of states fell under that 50% mark).  And some of the states being watched over due to the 1972 measurement would have *surprise* dropped off the oversight as they had over 50% in the election of 2000. 

The fix for this would be simple.  All Congress has to do is change section 4 so instead of looking at a specific year, it looks instead to the year of the last presidential election.  Then it automatically updates, and states not subject to the law where there may be issues can now be reviewed!  Oh wait, this will never happen.  Why?  Well if you use figures from the 2012 elections, not many states would fall under the auspices of the act.  For example, only West Virginia had less than 50% voter turnout (47.8%)  in 2012. 

This means the only other states the government could put it's thumb on would be ones who maintained a "test or device" restricting the opportunity to register and vote. And that section of the code hasn't been updated since the 70's as well.  So while "test of device" includes items in the law like literacy tests, good moral standing tests, being vouched for by another voter, language discrimination (English only), and such items.  This section of the law is also broken as it is to specific and doesn't allow for a process or way in which new items (say having a voter ID card) cold be measured and decided on as to if this is a "test or device" restricting voting.  But again, this is known and could be fixed.  But Democrats will never do so as adding a process to be used to determine if "X" is a test or device would backfire on them.  For example, they have supported programs to provide free / extra bus service in inner cities to help people get to voting locations.  Sounds nice.  But they only do it in the cities (which benefits them).  By limiting the service to the inner city, these programs could be judged a device limiting voting rights as suburban people do not have access to the same tool (free rides to voting places) as inner city folks. 

So, fair voting can be restablished.  But only if it is truly fair voting, for all people and parties. Hmmmm .. since the Democrats will never go for that, I guess the act is dead.  Oh well. 

KenCurrie
KenCurrie

Cohen, get a life and get the facts.  Another typical liberal reaction to an excellent SCOTUS decision and one long overdue.

harper626
harper626

What the heck is wrong with having an ID to vote.   You have to have one to drive or cash a check.    Much ado about nothing.

harper626
harper626

So what is new about 5 justices creating or cancelling laws contrary to congress and the support of the  majority.  Nothing.    They have immense unconstrained power.

davidhoffman
davidhoffman

In some ways this ruling may be a good thing. It might motivate groups like the NAACP to spend their money and time on solving some real issues. For example, instead of litigating against the requirement to have a proper legal government issued photo ID card in order to vote, these organizations can expend the effort to help citizens get the needed identification. Idiotic moves like canceling an election, can be litigated after the fact. The state or federal court systems would not look with favor on that sort of thing. One election might be missed, but I would bet it would not happen for two or more election cycles. Changing polling stations at the last minute can be challenged after an election.  Again local officials acting imprudently might only get away with it for one election cycle.  Redistricting gerrymandering has been done by both blacks, Hispanics, and whites. These ridiculously illogically shaped districts need to be stopped, no matter who draws them up.  A lot of the issues handled by pre-clearance can be handled after the election has taken place. The results may be slower, but should be similar. 

guswfla1
guswfla1

Once again the Subversion Members of the Court strike a blow to the heart of America's Democracy.  That five Right-WingNuts wield such apparent power is perhaps the greatest travesty this country has ever experienced.

emtb11
emtb11

Another bad and misleading article. Way to go Time, on the path to irrelevancy.

cloudninegirl
cloudninegirl

Too bad Roberts didn't switch hit, and strike down ObamaCare.

mrbomb13
mrbomb13

Adam Cohen, much of your column lacks any kind of evidence to substantiate your curious claims.  Here's a sampling:

1) "The Supreme Court delivered a sucker punch to fair elections today...It is a ruling that will make it much easier for partisan election officials and legislators to rig the voting system – and a lot harder for ordinary voters to participate in democracy."

I ask you - where are your peer-reviewed studies that election officials/legislators will "rig the voting system?"  Further down the column, you mentioned one Mississippi county that had a court intervened in the election.  However, that amounts to anecdotal evidence at best.  You cannot over-generalize one instance in one county in one state to represent the entire South.  Thus, your claim is logically unsound.

2) "The ruling is also a huge Supreme Court power-grab."

With that statement, you're completely misleading your readers.  The Supreme Court has not 'seized power.'  Instead, it has told Congress that the standards of Section 4 must be updated.  The Court has not told Congress that it may not pass further legislation on the matter, which would indeed amount to a 'power grab.' 

3) "...But in nullifying one of the most important pieces of civil rights legislation in U.S. history, he [Chief Justice Roberts] picked up a bat and swung for the bleachers."

With that analogy, (again) you're completely misleading your readers.  If the Chief Justice had 'swung for the bleachers,' he would have gutted the entire law.  Instead, he focused his attention on one important section within the law. 

4) "Without doing any of that work [witness depositions, etc.], five justices have said that they know better."

It is the job of the U.S. Supreme Court to decide the constitutionality of the laws in the cases which come before them.  That does not encompass the duties of Congressmen, who are beholden to their constituents concerns/desires.  Therefore, it would be a huge mistake to assume that a Supreme Court Justice would engage in the activities of a Congressman. 

Additionally, I wonder if you would have echoed the same sentiment about the Court's decisions in matters concerning abortion, sodomy, affirmative action, Obamacare, etc..  Should those justices in those cases, "have known better?"

5) "In theory, Congress could come up with another formula – and a list of states and localities – that the Supreme Court would find constitutional. But it would be a legislative nightmare for Congress to try to do that – and no one expects that to happen any time soon."

You seem to forget that in a democracy like ours, change happens slowly.  That is because we have a two-party system structured for gradual (not sudden) changes that evolve with the given society.  So, an updated 'Section 4' might not happen soon, but that does not mean that it won't ever happen.  Given our democracy, you just have to wait and see.

6) "So what does the gutting of the Voting Rights Act mean for American democracy? It will be easier for bad-apple election officials to revive classic vote suppression tactics – like moving polling places at the last minute, so voters cannot find them, or getting eligible voters off of the rolls. And it will be easier for state legislatures to draw district lines to divide up minority voters and dilute their power at the polls."

Again, where is your scholarly evidence to support your claim that such voter suppression tactics 1) have occurred in recent history, or 2) will occur as a result of this most recent ruling?  A 'gut reaction' on your part is not an objective conclusion, and instead is more fueled by your own personal bias, thereby again misleading your readers.

7) "Of course, even if that ['things have changed'] were so, it would not mean that we don’t need the Voting Rights Act."

So, are you inferring that the Court was lying when it said that, "things have changed" in the South?  Do you have even a scintilla of evidence to support that inference?  Furthermore, again, the Court did not gut the entire Voting Rights Act.  Therefore, your conclusion that the Court thinks that, "we don't need the Voting Rights Act" is patently false.

8) "Now that the Supreme Court has gutted the Voting Rights Act, we should get ready for an anti-democratic downpour."

What a great way to conclude your article - with greatly exaggerated, unsubstantiated hyperbole.  "An anti-democratic downpour?"  Where is your evidence to support such an assertion?  Do you really think that such statements are appropriate for an objective news-gathering site?

I understand that your article is merely a "Viewpoint" in the Time.com site, but you have a responsibility as a professional journalist to give substance to your claims.  Bias, hyperbole, exaggeration, and outright falsity have no place in a professional article. 

youngChinese
youngChinese

As a Chinese,I have to say that justice is preciousest. Nationals should have the vote not only writed on the law but also executed in practice.

FrankBlank
FrankBlank

Not surprising: a right wing court supports goals announced by Paul Weyrich, one of the founders of the all new neo-fascism.  He said, in 1980,  "As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down."  By "our" he means fundamentalist right-wing jihadists.  

Always keep in mind, the GOP is not only anti-fact, anti-science, and anti-education, it is also anti-democracy.  And has been, every day, for the last 120-130 years.  

DebbieHanrahan
DebbieHanrahan

Between this and the Citizens United Ruling I think the conservative packed court is not even really conservative but facist. 

jerpike
jerpike

When have we had "fair elections"? All of our elections take place by and for two political parties who have built in a monopoly over the political system for themselves. 

trailsman
trailsman

Perhaps SCROTUM hasn't noticed, but they are looking backwards at an ugly part of American history, and hoping they represent it well.

Ncgentleman
Ncgentleman

So,if theSCOTUS decides against the liberal group think it is a travesty. Too bad

vstillwell
vstillwell

Is this court trying to bring back Jim Crow laws? 

hivemaster
hivemaster

Throw out the GOP House in 2014 so we can get something done on this.

j45ashton
j45ashton

What this means in reality is that nothing new will pass because there will be deadlock in the House of Reps because Republicans know that politically, doing nothing favors them.  Meanwhile, during the time when there's no enforcement, Red States will go back to their old tactics because for a majority of whites there, the Civil war never ended.  There will be new stories in the news about voter suppression in Southern states, and the white majorities in these state legislatures & tea party activists will just laugh themselves sick over the federal government's in ability to monitor voter suppression.  Another step backward thanks court activists appointed by Geo W Bush...the biggest jerk everto live in the white house.

cloudninegirl
cloudninegirl

@mrbomb13 Yours is THE ONLY comment that makes sense and is the truth. Except for mine, of course. :)

cloudninegirl
cloudninegirl

@FrankBlank Frank, you are BLANK. As in a BLANK CANVAS. To accuse this court of being right-wing is asinine. THEY UPHELD LIBERAL OBAMACARE.

emtb11
emtb11

@DebbieHanrahan If you cannot even spell fascist correctly do not accuse others of being so. Dumb people such as yourself should not post, ever.

vstillwell
vstillwell

@Ncgentleman Yeah, it's better if they go with conservative group think. That always works out well. 

HeatherOMalley
HeatherOMalley

@vstillwell - You mean the ones created by democrats to keep blacks from voting? No. Blacks have exactly the same voting rights. What part of that is confusing you?

HeatherOMalley
HeatherOMalley

@j45ashton - Wow! What a vivid imagination you have. In the real world though, the only real voter suppression recorded in recent history was by blacks against whites and Hispanics. Good luck with your histrionics, and please take some history classes........ you appear very ignorant along those lines.  

emmatheed
emmatheed

@cloudninegirl @FrankBlank  Cloud 9, Where did you receive your education? Do you have any? You write like a true champion of the Stupid Party. The more you say, the more ignorant you appear here. I note that you rely on the longer postings to agree with. Too much information and too many "big words" for you to bother with? Oh yeah, and "the truth," however you might define that. 

guswfla1
guswfla1

@emtb11 Intolerant people such as yourself are called BIGOTS.  They're worse than people that make spelling mistakes.

vstillwell
vstillwell

@HeatherOMalley @vstillwell Ummm, yeah, that was a long time ago, Heather. A long time ago. The VRA outlawed the manipulation of voting practices that were prevalent during the Jim Crow era. Did you read the article? 

FrankBlank
FrankBlank

  @Heather - Hi, Dopey!   All those democrats you mention became republicans forty to fifty years ago.  You should learn a little US history before babbling in public. 

guswfla1
guswfla1

  Really?  Blacks kept whites from voting?  Where?  When?  Were you lucid when you learned this?

vstillwell
vstillwell

@HeatherOMalley @j45ashton The VRA would protect whites form voter suppression practices as well. As this country's demographics change, us white folk might want to keep this mind. 

FrankBlank
FrankBlank

@HeatherOMalley You say the only voter suppression blah blah. Let me channel one of your republickkkan leaders:  Wanna bet? Or are you just running your mouth?

Someone as completely and willfully ignorant as you shouldn't be using the i-word. 

guswfla1
guswfla1

@Liberally_Challenged@guswfla1All I did was call her a bigot.  Regardless, here's the definition of bigot since you obviously don't know it:

a person who is obstinately or intolerantly devoted to his or her own opinions and prejudices.

While it is often used in conjunction with race, I didn't bring that up all, did I? 

Liberally_Challenged
Liberally_Challenged

@guswfla1 gus, how is she a bigot for not wanting the libs to continue to kill America?  There was no mention of race in her post.  In fact, I believe you are the racist for reading race into something where it obviously doesn't exist.

Liberally_Challenged
Liberally_Challenged

@FrankBlank @HeatherOMalley Okay SpankBank, let's talk about the Black Panthers being posted outside of polling places to intimidate white voters.  What evidence is there of white suppressing the black/hispanic vote?