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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    Sounds like a plan – nothing wrong with optimism…

  • haloadora

    Oh sure, let’s all reenact the sceen from Monte Python’s Life of Brian while we’re at it – we’ll whistle and sing that song while they crucify the rest of our rights – you know the one “Always Look on the Bright Side of Life”.. Four states just reinstated the voting laws that until this morning were unconstitutional, I’m sure by weeks end every state with a Republican majority will do the same. While Liberals are busy stomping out fires (read scandals) created by the likes of Issa, the rest of the Repiglicans are tag teaming us…but hey, we can still whistle..

  • Stan Johnson

    I’m sorry, but I CANNOT SUBSCRIBE TO YOUR “BRIGHT SIDE” DEFINATION OF WHAT THE SCOTUS DID TODAY—if you were BLACK, had seen the injustice, the intolerance of the Jim Crow era, and had actually LIVED thru that mess, you would be as insensed as most Black people……and what’s more, I’m even MORE optomistic that this country is headed for one hell of a second Civil War, as IF minorities cannot vote without having stress and racism thrown their way, sooner or later, someone, somewhere in this country is going to get a gun, and show America what it means to be SO RACIST………..

  • J-Way

    Excellent decision, and one I completely agree with.

    Discrimination based on racism was rampant in the Section 5 states in the previous century, but it’s a new era. Yes, racism most definitely still exists, even in Alabama (the state in the suite). The Paula Deen case shows it’s still there in Georgia. But it’s also rampant in California, New York, Florida, Ohio, Tennessee, Illinois, and everywhere else different races mix. Yes, even in states currently are NOT covered by section 5 (or are only partially covered).

    The current situation where Ohio can pass a voter ID law and make last minute changes to early voting that affects minorities while North Carolina has similar changes struct down under Section 5 is fundamentally flawed.

    If you’re still trying to punish the Section 5 states for the evils committed by their grandparents, then you are looking for revenge instead of moving forward. The very opposite of “progressive”.

    If you truly want fairness, then the SCOTUS is right – congress needs to come up with a new formula that takes into account CURRENT (within the past few election cycles) discrimination trends.