In February, I wrote in this space urging the Supreme Court to strike down the preclearance sections of the Voting Rights Act. The parts in question included Sections 4 and 5, which only applied to a handful of states, districts, or localities in in the nation. Those that were covered by these sections were required to get approval from the Justice Department before any law regarding the voting process could go into effect. These Sections were put in place in response to Jim Crow laws that aimed at decreasing the minority vote through legal or financial hurdles.
On Tuesday, the Supreme Court announced their decision to strike down Section 4 of the Voting Rights Act, requiring Congress to use modern data if it intends to put specific states or localities under federal oversight. In the majority opinion, Chief Justice Roberts wrote, “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. Today the nation is no longer divided along those lines, yet the Voting Rights Act continued to treat it as if it were.”
Critics of the decision, including President Obama, argue that the law is still necessary to ensure that minority voters are not discriminated against. However, the Supreme Court pointed to a telling statistic: The Justice Department blocked fewer than 0.1 percent of all laws or policies that were passed under its scrutiny from 1995 to 2004. Essentially, preclearance had become nothing more than an expensive obstacle for states and localities. Many localities claimed that they could not change anything about the voting process, even the location of a voting precinct to across the street, because the cost of preclearance was more than they could afford.
I applaud the court’s decision because it ensures equality among the states, though I believe that it did not go far enough. The court did not strike down Section 5 of the Act, which allows for preclearance measures. However, without Section 4 in effect, Section 5 is null unless Congress does decide to use contemporary data, as the Chief Justice said. This means that the Voting Rights Act could essentially be put back into effect using any data that points to any sort of minority discrimination. For instance, even though the Supreme Court has found in favor of states in voter identification cases, Congress uses voter ID laws, or similar laws, as examples of discrimination.
The 10th Amendment assures that any authority not laid out in the Constitution as authority of the federal government is reserved by the states and the people. Section 5 of the Voting Rights Act flies in the face of this amendment, particularly the fact that the burden of proof is on the covered state. Section 5 steals power from certain states to regulate the voting requirements within their respective jurisdictions.
Thankfully, it seems unlikely that Congress will pass a new formula for preclearance, rendering Section 5 useless. However, until it is officially stricken from law, every state stands the chance of having power taken by the federal government.
Trenton Winford is a public policy leadership major from Madison.
