The Voting Rights Act Isn’t Dead… It’s Just Temporarily Out of Service

voting_rights_act_rallyThis morning, in a 5-4 decision written by Chief Justice Roberts, the Supreme Court struck down Section Four of the Voting Rights Act. The Court made clear that: “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2. We issue no holding on [Section] 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.” In plain English, as explained by Amy Howe from SCOTUSblog:

“Today the Court issued its decision in Shelby County v. Holder, the challenge to the constitutionality of the pre-clearance provisions of the Voting Rights Act. That portion of the Act was designed to prevent discrimination in voting by requiring all state and local governments with a history of voting discrimination to get approval from the federal government before making any changes to their voting laws or procedures, no matter how small. In an opinion by Chief Justice John Roberts that was joined by Justices Scalia, Kennedy, Thomas, and Alito, the Court did not invalidate the principle that pre-clearance can be required. But much more importantly, it held that Section 4 of the Voting Rights Act, which sets out the formula that is used to determine which state and local governments must comply with Section 5’s pre-approval requirement, is unconstitutional and can no longer be used. Thus, although Section 5 survives, it will have no actual effect unless and until Congress can enact a new statute to determine who should be covered by it.”

Now, this is surely a setback, but to declare the Voting Rights Act dead on arrival would be a misconception. The Voting Rights Act isn’t dead… it’s just temporarily out of service. I’ll explain…

SCOTUS split the baby. They upheld Sect. 5 of the Voting Rights Act while striking Sect. 4 until Congress “fixes the formula.” Now, while I don’t expect THIS Congress to act, I wouldn’t call the VRA DOA. It’s a set-back for sure but not the death of the VRA. That is a misconception you are going to hear from a lot of people on the left today. But, let’s not turn into the right and start yelling fire in crowded theaters just yet.

Section Four of the Voting Rights Act is what leads to the rigorous oversight of elections in Section 5. So killing Section 4, which SCOTUS just did, is like killing Section 5 and the whole VRA. But, “is like” is the key phrase, since they could have ruled the entire thing unconstitutional and didn’t. Moreover, while I am sad and I find it a setback, the fact remains that the Court left it open to be fixed. Whether it is fixed by this Congress is entirely different issue. However, we must be optimistic about the fact that they didn’t ACTUALLY strike the entire thing, which is really what many expected. Furthermore, as far as I’m concerned, Democrats should schedule a vote on a re-authorization of Section 4 of the Voting Rights Act every day until it is passed. Every time the GOP votes against it, America will see the GOP endlessly blocking a law that prevents voter discrimination.

In closing, today’s ruling is bad for democracy and for voting rights, and I don’t want to sugarcoat that. But at the same time, we must remember that the Voting Rights Act isn’t completely dead either. While SCOTUS’ ruling is bad, it’s also not the worst possible scenario. The worst possible scenario would have been SCOTUS ruling the entire thing unconstitutional, since then it would have been dead forever. More importantly, one shouldn’t mistake my optimism in a seemingly bad situation for a misunderstanding of the fundamentals of the Voting Rights Act. I am acutely aware of how the Voting Rights Act operates (and how our current Congress operates). However, I expected SCOTUS to strike Sect. 5 as well (since they surely hinted at that possibility during oral arguments), so while I am distressed with the outcome of the case and the realistic nature of what it means, I am also remaining optimistic and open minded about the situation and the fact that they didn’t kill the Voting Rights Act completely. This type of ruling, while not ideal, allows leeway that wouldn’t have otherwise existed had SCOTUS ruled the entire Voting Rights Act or Section 5 in particular, unconstitutional. Remember, “always look on the bright side of life.”

Ilyssa Fuchs

Ilyssa Fuchs is an attorney, freelance writer, and activist from New York City, who holds both a juris doctor and a political science degree. She is the founder of the popular Facebook page Politically Preposterous and a blog of the same name. Follow Ilyssa on Twitter @IlyssaFuchs, and be sure to check out her archives on Forward Progressives as well!


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