SCOTUS and the VRA: “Tossing the umbrella in the rain”

By Victor Landa, NewsTaco

You knew the dark clouds were gathering last February when Supreme Court Justice Antonin Scalia said that extending Section 5 of the Voting Rights Act was a “perpetuation of racial entitlement.”

Looking back on that statement, today’s Supreme Court (SCOTUS) ruling was foretold. The voting rights apparatus, as it was established, was going to be dismantled in one way or another. By simple appearances the Act is outdated – in some areas covered by Section 5 more blacks than whites go to the polls.  But that, and the election and re-election of a black President, doesn’t mean that we live in a post-racial election world. In fact, today’s  SCOTUS ruling makes that point. Here’s what the Justices ruled:

  • Section 5 of the Voting Rights Act (the pre-clearance section) stands. There will be no change to it.
  • Section 4 was struck down. Section 4 sets the formula for which states and jurisdictions will be covered under Section 5 and maps those jurisdictions.
  • The law was sent back to congress to reset the formula and redraw the maps.

You can begin to draw the implications.

Without a formula and a map Section 5 is not enforcable. The formula and the map are now in the hands of a dysfunctional congress that couldn’t pass gun purchase background checks with 90% public approval; that couldn’t approve a Farm Bill; that will have a hard time getting immigration reform through the House of Representatives.

The logic that will be used in congress to re-draw Section 5 jurisdiction coverage will sound something like this: “We don’t need pre-clearance in Misssissippi because more blacks than whites vote in that state.” Justice Ruth Bader Ginsberg, one of the dissenting voices on this case, described the situation by saying “you don’t throw away your umbrella in the rain because you’re not getting wet.”

Still, it’s not a devastating situation.

Section 2 of the VRA remains intact. That section gives legal recourse to sue in Federal Court for voter discrimination, and there are no pre-drawn jurisdictions; section 2 is nation-wide. But litigating voter discrimination under Section 2 is costly and time consuming.

The fact that both Section 5 and 2 remain intact says a lot. It says that the Supreme Court feels that racism is still a problem at the polls. They’re just not OK with the old maps of where racism happens. They say those need to be redone.

And there’s an opportunity there.

In the past election there were reports of wide spread voter discrimination in places like Ohio, which isn’t covered under the present Section 5 map. Maybe it should be. Maybe the new map should include many more states and jurisdictions than the old one did. It’ll be difficult, you can imagine the fight that an expansion of the formula and the map will generate. But it’s going to be a fight anyway, the Supreme Court made sure of that by tossing the ball in Congress’ court. Might as well make the fight epic.

It also means that the stakes of the 2014 mid-term election just got bigger.

Hollywood loves this kind of false ending/twisted plot. The next election will determine the future of Voting Rights, but the election will be held with out a key protection of the Voting Rights Act.

That’s a twist you couldn’t have seen coming.

[Photo by jayhay312]

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