More on the VRA decision from Prof. Wilson
On Tuesday, we posted Prof. McCormick's commentary on the Shelby County case regarding the Voting Rights Act. Today, Prof. Molly Walker Wilson, co-director of the Center for the Interdisciplinary Study of Law and expert on election law and legislation, shares her thoughts on the decision.
Q & A for Shelby County SCOTUS Opinion
Was a ruling that strikes down portions of the VRA surprising, or somewhat expected?
It was not surprising. Nobody who is a Court watcher is shocked by this ruling. One commentator (NPR's Nina Totenberg) remarked earlier this year that the Voting Rights Act (VRA) was "on life support." In 2009, when the Court considered the issue in Northwest Austin Municipal Utility District Number One v. Holder, Chief Justice Roberts said “[t]hings have changed in the South,” --where most of the states subject to federal oversight were located. In 2006, the Court maintained that the oversight, which is reserved only for states that historically engaged in discriminatory voting practices, “must be justified by current needs.” Many have thought that it wasn't a matter of whether the Court would strike down Section 4, but when it would do so. Finally, the "conservative" faction has the majority -- this is a reality that makes certain opinions more likely, and this is among those opinions.
What are some of the underlying legal theories at play in the decision, and how are they affected?
The VRA prohibits states from imposing any "voting qualification or prerequisite to voting, or standard, practice, or procedure ... to deny or abridge the right of any citizen of the United States to vote on account of race or color." This language echoes language in the 15th Amendment. The Act was, in 1965, a pragmatic, drastic, and clearly necessary approach to combat systematic discriminatory practices that created barriers to African Americans voting (one example is requiring that the voter be literate -- some equate the modern day controversial practice of requiring voter ID to these older requirements). The goal of the Act was to prevent traditionally discriminatory states, counties, and municipalities from enacting laws that created barriers to voting for groups that historically had faced discrimination at the polls.
Most, including members of the Court who voted with the majority in Shelby County, agree that the preclearance measures imposed by the VRA were necessary at the time. In 1966, the Court in South Carolina v. Katzenbach, held that it was constitutional for Congress “to limit its attention to the geographic areas where immediate action seemed necessary.” These areas were based upon consideration of whether the districts had imposed requirements such as literacy, or had used lists that had the effect of suppressing the African-American vote.
However, to selectively impose preclearance requirements on some states and districts and not others was an extraordinary measure, from a constitutional perspective. The Tenth Amendment re¬serves to the States any power not granted to the Federal Government elsewhere in the Constitution, including the power to regulate elections. The Court also recognizes equality among the states as one of its guiding principles. These tenets had made the Court uneasy regarding the VRA’s disparate treatment of States.
Ultimately, the tension in this case (and in prior VRA cases dating back to 1965) is between safeguarding the constitutionality of elections in various areas of the United States where historically elections were not constitutional, and honoring the constitutional and time-honored tradition of federalism, state sovereignty and equality.
Does it make a difference that they court struck down the formula for determining which jurisdictions require pre-clearance, and not the pre-clearance requirement itself?
Section 4 of VRA provides the “coverage formula,” de¬fining the “covered jurisdictions” as States or political subdivisions that maintained tests or devices as prerequisites to voting, and had low voter registration or turnout, in the 1960s and early 1970s. The Shelby County decision invalidates only Section 4, leaving Section 5 intact. The upshot of this is to leave the Section 5’s preapproval requirement without any covered jurisdictions to govern. Thus, the only way that preclearance survives is in the event that Congress enacts a new statute to determine who should be covered by it. Of course, any such statute would also be subject to constitutional testing and future decisions by the Court.
What are the long-term impacts of the decision on election law? Are there any potential effects on our laws in Missouri?
In the last presidential election, courts relied on Section 5 to block voter identification requirements and cutbacks on early voting in covered jurisdictions. Challenges to such measures will be difficult in the wake of the Court’s Shelby County opinion. Some no doubt predict more widespread and pernicious effects. In 2006, when Congress overwhelmingly voted in support of extending the VRA (the Senate was unanimous, the house voted 390-33 in favor), there was testimony from congressional hearings that suggested that "there still was pervasive discrimination,"(words of Republican Rep. James Sensenbrenner of Wisconsin, then House chairman of the Judiciary Committee). Missouri was not a state that was covered under Section 4, nor were any districts in Missouri covered. Therefore, the immediate impact on Missouri is minimal.