Tuesday, June 25, 2013

SCOTUS Strikes Down Portion of the VRA

SCOTUS has just declared part of the VRA unconstitutional. Full text of the opinion is here (PDF). Here's the meat of the decision (in my humble opinion):
The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command. The Amendment is not designed to punish for the past; its purpose is to ensure a better future. See Rice v. Cayetano, 528 U. S. 495, 512 (2000) (“Consistent with the design of the Constitution, the [Fifteenth] Amendment is cast in fundamental terms, terms transcending the particular controversy which was the immediate impetus for its enactment.”). To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past. We made that clear in Northwest Austin, and we make it clear again today.
Striking down an Act of Congress “is the gravest and most delicate duty that this Court is called on to perform.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (Holmes, J., concurring). We do not do so lightly. That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.
Just counting noses, Chief Justice Roberts, wrote this opinion, joined by Thomas, Alito, Scalia, and Kennedy. Justice Ginsburg wrote a dissent, which was joined by Breyer, Sotomayor, and Kagan. So Kennedy is the swing vote yet again. History doesn't always repeat itself, but I'm told that it rhymes.

I think this means that until Congress updates the coverage formula, the preclearance requirement is void. Accordingly, if Congress wants to have a functioning VRA, they're going to have to update their numbers. Don't hold your breath for that to happen.

On a practical level, if you are a state that would be subject to the preclearance requirement of the VRA (like South Carolina) now would be the time to pass laws about voting - you don't have to ask permission from the Federal government. For instance, SC could have waited a little bit on the Voter ID law, and we wouldn't have had to deal with the feds poking their nose into it.

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