In the 5-4 ruling in the case of Shelby County v. Holder, the U.S. Supreme Court’s conservative majority has effectively sealed the fate of one of the 20th Century’s two most important pieces of legislation, the Voting Rights Act of 1965.
In striking down Section 4 that created the formula, or standard, by which states and local governments were judged to be under federal oversight, the Court took the dramatic step of not attacking what was presumed to be the act’s core, but rather the act’s means of achieving voter protection.
The Voting Rights Act contains key sections that fundamentally reshaped the relationship between the national and subnational governments. Section 2 forbids, across the nation, any technique that would “deny or abridge the right of any citizen of the United States to vote on account of race or color,” virtually echoing the words used in the Constitution’s 15th Amendment.
In Section 3, Congress authorized federal examiners to investigate any state or local government that used techniques to deny voting based on race or color, and allowed them to suspend the use of those techniques.
Section 4, which the majority’s opinion struck down, was the basis for a formula, or standard, to determine which state or local governments would be subject to the next part of the act, Section 5. Section 4 established a two-part baseline: if there was a “test or device” used to deny citizens the opportunity to vote as of November 1, 1964, and whether half of all eligible citizens were registered to vote on that same date or half of all eligible citizens voted in the presidential election in November, 1964.
If a state or local government fell into that formula, then Section 5 would “cover” the jurisdiction and require the state or local government to gain federal approval for any change in their election law (known as “preclearance”). Ultimately, nine states (with some exceptions inside the state) and a number of counties, including 40 in North Carolina were “covered” by Section 5 based on the components found in Section 4.
Following numerous extensions and amendments to the VRA, the challenge was made by Shelby County in Alabama to challenge the constitutionality of Sections 4 and 5. Following a 2006 extension of the act, the U.S. Supreme Court warned Congress to change Section 4’s formula, yet Congress refused to do so.
In the Shelby case, the Court changed the formula for Congress by striking Section 4 down as violating the “fundamental principle of equal sovereignty” among the States. In 1966, the Court allowed Congress to treat the States differently; nearly fifty years later, using evidence of the rise of African-American voters and officials in many of the covered states and local governments, the Court’s majority believed that the 1965-based formula “no longer” meets the test of the past.
So, where does this leave the Voting Rights Act? Section 2 still stands and is the law of the land. But for Section 5, which served as the main source of federal oversight to ensure the protection of minority voters, one would be hard pressed to say that section is still standing, but more crippled, especially after the fall of Section 4.
Congress, as the court noted, could utilize a more modern formula to reinstate Section 4; however, with the intense polarization and divided government that appears to be in place for some time, the likelihood of a modern version of Section 4’s formula may equal nothing ultimately.
What this decision may mean for North Carolina is that bills such as a voter ID may have a clearer path to becoming law, now that preclearance seems doomed. The other major facet to watch will be the on-going lawsuit against the current district maps.
Indeed, if it comes to the point where majority-minority districts are no longer needed in the Tar Heel state, and if the GOP-drawn maps are revisited, the ability to pack black voters, reliably Democratic in their partisanship, into one district and leave white voters, typically GOP, in surrounding districts may be unnecessary.
In a way, the striking of a major section of the Voting Rights Act could serve as an attempt to rebalance the hyper-partisan of district lines.
And yet, in another bit of historic irony, Alabama, the birth state of the Voting Rights Act as a result of the protests and attacks in Selma in 1965, now appears to be the act’s final resting place as well, in Shelby County.