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Prof. McCormick on the Voting Rights Act | SLU LAW

Prof. McCormick on the Voting Rights Act


Another big Supreme Court opinion was handed down this morning, and in a 5-4 decision, the justices struck down a key section of the Voting Rights Act. The section provided a formula for determining which jurisdictions needed pre-clearance from the federal government to change their election laws. The court did not strike down the pre-clearance requirement as a whole, which was a possibility, but striking down the formula deals a serious blow to the enforcement of the law.

Prof. Marcia McCormick, an expert on civil rights, discrimination, and Constitutional law, tweeted quickly after the decision was handed down.

We caught up with Prof. McCormick to find out more about what that meant and what the implications of the ruling might be.

Was a ruling that strikes down portions of the VRA surprising, or somewhat expected?

In one sense, the ruling was a little surprising because the Court did not directly address the section of the Voting Rights Act that was really the basis for challenges in recent years, section 5. That is the section that requires certain states and some counties to pre-clear any proposed changes to voting practices with the Department of Justice or a panel of three federal judges. It was surprising that the Court limited its holding to section 4(b) of the Act. That section provides the formula for determining which states and counties must pre-clear changes.

In other senses, the outcome was fairly expected. Chief Justice Roberts tends to write very narrow decisions and several of the Justices tend to agree with decisions that avoid big constitutional questions. This was the smaller constitutional question that the case presented. In addition, the Court had signaled in the last case to consider the pre-clearance provisions that it was skeptical of the continuing need for pre-clearance. In that case also, decided in 2009, the Court went with a narrower way to rule for the local body seeking to avoid pre-clearance.

What are some of the underlying legal theories at play in the decision, and how are they affected?

One of the big underlying theories is the power of Congress to enforce the post-Civil-War Reconstruction Amendments: the Thirteenth, Fourteenth, and Fifteenth Amendments. Those three amendments did something different from the constitutional amendments that came before them. Many of the prior amendments were express limitations on Congress's power. The Reconstruction Amendments actually granted Congress affirmative powers to enforce them by appropriate legislation. They also shifted power away from the states and to the federal government.

As a result, some of the big legal issues present include federalism, or the rights of states to be free from regulation by the federal government, and separation of powers, the power of Congress versus the federal courts to determine what the Constitution might allow or require.

Related, then, is what equality requires--whether unlawful discrimination requires an intention to harm a racial group or if effects that harm a racial group are enough. That question combines with the questions of who decides, Congress or the Courts, and what does it mean to enforce that equality? Can Congress prevent potential violations, or is it limited to penalizing demonstrated clear instances of discrimination?

Finally, a big legal issue relates to how society changes over time. One of the points Justice Ginsburg made was that the Court seems to be saying that because the VRA was successful, it's not constitutional any more. If we get rid of most discrimination, then the law that got rid of it is no longer valid.

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?

Yes and no. As long as the pre-clearance provision remains valid, Congress can come up with a new formula for determining what state and local election districts would be subject to it. And the Court has not yet said that requiring pre-clearance for election districts that have recently tried to discriminate would be unconstitutional. At the same time, the new formula would have to be significantly different in kind from the prior one, and given the way that Congress is functioning lately, it may be difficult to pass anything. That said, the 2006 reauthorization had overwhelmingly bipartisan support, so this may be an issue that members of both parties can agree on.

You might also have noticed that Justice Ginsburg's dissent was really about why the pre-clearance requirement was still supported by the record before Congress when it reauthorized the VRA, and not about the formula. The majority and dissent disagreed with whether the record showed enough race discrimination in voting, but the majority at this point was not willing to say that it was not enough of a record to support the pre-clearance requirement itself.

What are the long-term impacts of the decision on election law? Are there any potential effects on our laws in Missouri?

A lot depends on the formula that Congress enacts, if it does enact one. No jurisdiction in Missouri met the thresholds previously enacted, and so no jurisdiction was subject to the pre-clearance requirements. If minority vote dilution becomes the touchstone of a new formula, or voter id laws are found suspect, then some of Missouri's practices may subject the state or local election districts to pre-clearance requirements. But it's too early to tell, really.

There are potential long term impacts on another body of laws, though, too. Several federal civil rights laws contain provisions that are designed to prevent sneaky constitutional violations by penalizing conduct that the constitution itself would not prohibit. An example is the employment discrimination provision that limits the ability of employers to take actions that have discriminatory effects. Most of those civil rights laws were enacted in the same time period as the VRA. If they have been effective over time, then maybe they are not valid under the constitution either.


Chief Justice John Roberts announced that the Court will have one last day of announcing opinions tomorrow, at 9 a.m. St. Louis time. More big decisions are expected then on same-sex marriage.

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