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The U.S. Supreme Court has struck down the centerpiece of the landmark 1965 Voting Rights Act. The decision frees nine states, mostly in the South, from federal oversight of their voting laws. In a 5-to-4 decision, the court said it was invalidating the coverage formula because Congress had not updated it in 40 years.
The decision provoked dismay in the civil rights community, and we'll talk about it with the head of the NAACP. First, here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: The Voting Rights Act, widely viewed as the most effective civil rights legislation in American history, is unique in the way it treats jurisdictions with a history of racial discrimination in voting. The law applies to nine states, mainly in the South, and parts of seven other states, and it requires that any changes in voting laws or procedures in the covered jurisdictions have to be approved in advance by the U.S. Justice Department or a federal court in Washington.
The law and the coverage formula have been extended repeatedly, most recently in 2006. But today, the Supreme Court declared the coverage formula unconstitutional because it's based on old voting data and has not been updated since 1975.
Writing for the five-justice court majority, Chief Justice John Roberts noted that in 1965, when the law was enacted, only 7 percent of eligible African-Americans registered to vote in Mississippi, while in 2004 the number was up to 76 percent. Despite these numbers and similar numbers in other states covered by the law, he said, Congress extended the voting rights law in 2006 without changing the formula.
Roberts said, in 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today, the nation is no longer divided along those lines, he said, yet the Voting Rights Act continues to treat it as if it were.
The coverage formula, therefore, unconstitutionally invades the sovereignty of the covered states and, based on outdated data, imposes on them a burden that it does not impose on other states. Our country has changed, the chief justice said, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.
Reaction was swift. Sherrilyn Ifill is president of the NAACP Legal Defense Fund.
SHERRILYN IFILL: This decision by the court today is a game changer and leaves virtually unprotected minority voters in communities all over this country. We will not soft-soap it. This is a real threat. But we believe strongly that Congress can fix it.
TOTENBERG: President Obama and Attorney General Holder echoed that thought. Here's Holder.
ATTORNEY GENERAL ERIC HOLDER: I am hopeful that new protections can and will pass in this session of Congress.
TOTENBERG: Privately, though, most voting rights experts were more than skeptical that the current polarized Congress could enact any fix.
HEATHER GERKEN: It's just, as a political matter, a nonstarter.
TOTENBERG: That's Yale law professor and voting specialist Heather Gerken. Voting rights expert Richard Hasen of the University of California, Irvine School of Law agrees. He calls the pre-clearance section of the law effectively dead.
RICHARD HASEN: It's hard for me to imagine that Congress is going to come up with any kind of new coverage formula.
TOTENBERG: Instead, he said that states with records of discrimination are likely to flex their muscles.
HASEN: I think practically what's going to happen is you're going to see more controversial voting laws put into place.
TOTENBERG: Voting rights experts note that while civil rights groups may be able to fight some of these laws in court, the laws will go into effect while the legal battle is fought out. Professor Gerken.
GERKEN: The sword of Damocles is no longer hanging over them.
TOTENBERG: That is as it should be, says voting rights authority Abigail Thernstrom. There was a time, she points out, that discrimination in the South was horrific and violent, but that time has passed.
ABIGAIL THERNSTROM: It's a different era. It's a different region, thank God.
TOTENBERG: Indeed, Chief Justice Roberts pointed out in his opinion for the court today that Selma, Alabama, where Congressman John Lewis was brutally beaten while marching in 1965 for the right to vote, Selma now has a black mayor. Thernstrom echoed another theme in the court's opinion that states are entitled to their sovereignty and to be treated equally. Now, she says, these states are free.
THERNSTROM: They're out of the penalty box, and it will be legal business as it's usually conducted.
TOTENBERG: Guy Charles of Duke Law School agrees, at least in part, but he also sees a nasty consequence of today's ruling.
GUY-URIEL CHARLES: You're also likely to see are more partisan fights with respect to voting rights. I think the parties may view fighting about voting rights as a way of turning out their respective bases.
TOTENBERG: There was already some evidence of a partisan divide on Capitol Hill today as some key Republicans applauded the court's decision and Democrats condemned it. Indeed, the practical reason that the formula struck down today was never modernized is that it was simply too politically difficult. No new jurisdiction wanted to be designated a bad actor under a new formula.
Notwithstanding all that, there was a real sense of sadness in the civil rights community today. Stanford law professor Pam Karlan has litigated many a civil rights case under the Voting Rights Act, and she sees little hope that Congress will be able to reconstruct the law.
PAMELA KARLAN: These acts finally gave reality, real meaning on the ground, to the guarantees that we fought the Civil War over. And so that's how America was transformed, not just by the Constitution, but by these congressional statutes that put the Constitution into action.
TOTENBERG: Heather Gerken.
GERKEN: The Supreme Court just struck down the crown jewel of the Voting Rights Act, and it really does matter in the sense that the Supreme Court has just announced what is the end of the civil rights movement. And that's a big deal.
TOTENBERG: That sadness was also apparent in the opinion of the four-justice minority on the Supreme Court today. Justice Ruth Bader Ginsburg once again, as she has several times in recent weeks, took the unusual step of dissenting not just in writing, but from the bench. The issue in this case, she said, is who decides, Congress or the court?
The post-Civil War amendment, she observed, are not like many other provisions of the Constitution that give the court, clearly, the last say. The 15th Amendment instructs that the right to vote shall not be denied or abridged on account of race, and it vests in Congress the power to enforce that right by appropriate legislation.
In this case, Ginsburg continued, Congress, over a 20-month period, held 21 hearings and amassed documentation totaling 15,000 pages before it reauthorized the Voting Rights Act with almost no dissent. Ginsburg quoted Dr. Martin Luther King: The arc of the moral universe is long, but it bends towards justice if there's a steadfast commitment to see that the task is completed. That commitment, she said, has been disserved by today's decision. Nina Totenberg, NPR News, Washington.
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