By Representative Sensenbrenner
Published July 31, 2013
The Voting Rights Act (VRA) is one of the most important pieces of civil rights legislation ever passed. It began a healing process that ameliorated decades of discrimination and is vital to our commitment to never again permit racial prejudices in our electoral process.
At a time of social upheaval and political inequality, the VRA helped distinguish America as the world's premier example of democracy. Free, fair and accessible elections are sacrosanct, and the right of every legal voter to cast their ballot must be unassailable. In contrast to past attempts to end discrimination, the VRA required federal preclearance of changes to voting laws in areas with histories of discrimination. Section 5 of the VRA was the only federal remedy that could stop discriminatory practices before they impacted elections.
Prior to the 2006 reauthorization, the Judiciary Committees held multiple hearings examining the VRA. Congress amassed a legislative record of over 15,000 pages, documenting invidious discrimination and demonstrating "the continued need for federal oversight."
In Shelby County v. Holder, the Supreme Court severely weakened the VRA's election protections. In a 5-4 decision, it eliminated the formula for determining which areas are covered by section 5. The result is that preclearance requirements remain, but only apply in the handful of locations subject to a court order.
The ruling suffers from one glaring oversight: it fails to account for the bailout procedures in the VRA reauthorization. Chief Justice Roberts recognized that the VRA "employed extraordinary measures to address an extraordinary problem." But while the majority chastised Congress for failing to update Section 4's coverage formula, it ignored the fact that, far from punishing areas for distant history, any covered jurisdiction could bailout of coverage by demonstrating a 10-year period without discrimination. The coverage formula, coupled with the act's bailout procedures, ensures a fluid and current response to discrimination. The very fact that these jurisdictions have not bailed out is evidence that the VRA's "extraordinary measures" are still necessary.
The Court's decision ensured increased litigation. The prohibitions against voter discrimination are still intact, and state and local governments will have to defend against more such litigation. While the Court struck down Congress's coverage formula, courts still have the ability to "bail-in" jurisdictions to the VRA's preclearance procedures if they find evidence of discrimination. The Department of Justice has already announced it will pursue such coverage in Texas.
By striking down Section 4, the Court presented Congress with both a challenge and a historic opportunity. While it is too early to say how to best restore the formula struck down by the Court, any solution must be politically palatable and comply with the Court's interpretation of the Constitution. It will require extensive legal expertise and political input as this is not an easy puzzle to solve.
Voter discrimination still exists, and our progress toward equality should not be mistaken for a victory.
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