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In 5-4 Vote, Supreme Court Strikes Down Key Provision of the Voting Rights Act

June 25, 2013 at 12:00 AM EDT
A key provision of the Voting Rights Act requiring federal oversight of states with a history of racial discrimination has been struck down by the Supreme Court. Jeffrey Brown discusses the ruling with the National Law Journal's Marcia Coyle, and the court's argument that the U.S. is no longer divided as it was in the 1960s.

GWEN IFILL: It’s considered one of the most important pieces of civil rights legislation ever passed. But, by 5-4, the U.S. Supreme Court today took the teeth out of a law enacted nearly 50 years ago.

NewsHour correspondent Kwame Holman begins our coverage.

President Lyndon Johnson signed the landmark law in 1965, and ever since, the Voting Rights Act has policed voting discrimination. But today’s decision effectively puts it on hold.

Chief Justice John Roberts, writing for the five-member majority, said the law originally distinguished between states that had used barriers to minority voting and had low voter turnout and those that had not. But he wrote, “Today, the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”

Edward Blum, speaking for officials in Shelby County, Ala., who made the challenge to the voting act, welcomed the outcome.

EDWARD BLUM, Project on Fair Representation: This decision restores an important constitutional order to our system of government and that requires that all 50 states and every jurisdiction have the laws applied equally to them.

KWAME HOLMAN: The decision leaves the heart of the law, Section 5, on the books. It requires states mainly in the Deep South to get federal approval before changing voting procedures or districts. But the court majority said it cannot be enforced until Congress comes up with new rules for getting that approval, thus moving the responsibility across the street to the Capitol.

Sherrilyn Ifill, president of the NAACP Legal Defense Fund, said that’s now where her organization will focus.

SHERRILYN IFILL, President, NAACP Legal Defense and Educational Fund: We believe that Congress is in a better position than the Supreme Court to determine how voting discrimination plays out in this country. We’re disappointed, but now the ball is in Congress’ court.

KWAME HOLMAN: In a statement, President Obama said he was deeply disappointed with the court’s decision and urged Congress to restore federal oversight.

In the meantime, Attorney General Eric Holder insisted the Justice Department will continue to monitor changes in state and local voting laws.

ATTORNEY GENERAL ERIC HOLDER, United States: Let me be very clear. We will not hesitate to take swift enforcement action using every legal tool that remains to us against any jurisdiction that seeks to take advantage of the Supreme Court’s ruling by hindering eligible citizens’ full and free exercise of the franchise.

KWAME HOLMAN: Still, today’s decision apparently clears the way for several high-profile laws to take effect, including stricter voter I.D. requirements in Alabama, Mississippi, and Texas that drew objections from civil rights groups.

JEFFREY BROWN: And back with us tonight of course is Marcia Coyle of the National Law Journal.

So, tonight, Marcia, Justice Roberts speaking for the court saying in essence the world has changed, but the law has not.

MARCIA COYLE, National Law Journal: He has, Jeff, and here’s how he explained his ruling. He read a summary of it from the bench this morning. He began by saying how the Voting Rights Act is a dramatic departure from certain fundamental principles in the Constitution and in our government.

For example, states are given broad powers under the Constitution to regulate elections, and also fundamental to the structure of government is a belief, a commitment, to the equal sovereignty of the state. So the Voting Rights Act, he said, when it imposes current burdens as it does has to be justified by current conditions, and the coverage formula doesn’t do that.

JEFFREY BROWN: And just remind us of that formula. It’s the so-called pre-clearance right, where they have to apply to say what they’re going to do?

MARCIA COYLE: Well, there are two sections of the Voting Rights Act that operate in tandem. The coverage formula determines which states or jurisdictions have to conform to Section 5, which is pre-approval. Any coverage jurisdiction has to get approval of any voting changes from the Justice Department or the federal court in Washington, D.C.

It was the coverage formula, not the pre-approval process, that the court struck down today.

JEFFREY BROWN: So the question for the court, and you said Justice Roberts is looking at whether racial minorities continue to face voting discrimination. What evidence was he citing?

MARCIA COYLE: He agreed that there is still discrimination today, but the rub here is the coverage formula. He said when Congress designed the formula, it was meant to capture voting tests like literacy tests and also states in which there was low minority voting registration and turnout.

Well, he said, voting tests have been eradicated and registration and turnout of minorities in some of the covered states is actually much higher than even in states that are not covered. So the formula, he said, wasn’t meeting current conditions. It was based on data and practices from the 1960s and 1970s.

He also discounted the government’s argument that Congress had created this enormous record, 15,000 pages in 2006, to justify the reauthorization, incidents of current and past discriminatory practices. And he said that Congress didn’t use that record to shape a formula that responded to those current conditions.

JEFFREY BROWN: Now, the dissent was from Justice Ginsburg, and she referred to what she called second-generation — what are called second-generation barriers to voting.

MARCIA COYLE: Yes, and she had two points.

On that, she said the court really didn’t — the majority didn’t really engage Congress’ record here. She said Congress had overwhelming evidence of current, recent discrimination in voting that was egregious by the covered states. It wasn’t, she said, the voting practices, the tests and registration and turnout.

It was second-generation discrimination. It’s more subtle. It can involve moving a polling place to a location where minorities have no transportation or even racial gerrymandering of redistricting. So she felt that the majority really didn’t address what Congress did here.

But her second point was, she said fundamentally this case comes down to, who should decide, a court or a Congress, which is explicitly empowered by the 14th and 15th Amendment to enforce the anti-discrimination mandates in those amendments? And she said where Congress has produced 15,000 pages of legislative findings, the court should defer to Congress.

JEFFREY BROWN: Now, this is a decision that has almost immediate practical effect, right?

MARCIA COYLE: It does, judging by what some of the comments have been by some governors. The governor of Texas said that the I.D., photo I.D. law for voter registration will go into effect immediately. It’s considered the most stringent in the country.

Also, some of the redistricting plans that have been pending, there is no reason now, it would seem, unless the states and jurisdictions that are — that have been covered by Section 4 want to see what the Justice Department thinks, to actually ask the Justice Department or a federal court whether they’re violating the voting rights law.

JEFFREY BROWN: But, short of that, the court is saying it’s back in your hands, Congress.

MARCIA COYLE: It’s up to Congress, the chief justice said, to craft the formula that responds to current conditions.

JEFFREY BROWN: All right, now I want to talk — I want to ask you about another decision today. This was the so-called “Baby Veronica” case and it has involved adoption and the Indian Child Welfare Act.


This was a custody dispute. A single mother had a child of Indian heritage, Cherokee, a member of the Cherokee tribe, and the biological father wasn’t involved in supporting the pregnancy. Even though he wanted to marry her, she declined. When she decided to put the child up for adoption, he asserted his paternity. The dispute went into court. South Carolina courts found that the Indian Child Welfare Act, which is designed to protect the integrity Indian families …

JEFFREY BROWN: Yes, it’s based on a lot of past bad history. Right?

MARCIA COYLE: Bad, bad history of Indian children being removed — applied, and awarded custody to the father after finding he would be a fit father.

The court today, in another divided opinion, this one by Justice Alito, really parsed two provisions of the Indian Child Welfare Act, words to the effect of continued custody of the child and a provision designed to prevent the breakup of Indian families, and said that the act doesn’t apply here. The father never had continued custody, and there was no Indian family being broken up.

So the case was sent back to the South Carolina courts to determine who — under South Carolina law, probably, who should get the child.

JEFFREY BROWN: All right, so the practical impact is, it goes back to this lower court, but it’s not clear what will happen to the child at this point?

MARCIA COYLE: It’s not because the Cherokee tribe as well as the father could again try to assert their rights under that law.

JEFFREY BROWN: And, as you said, this was another 5-4 decision, right?

MARCIA COYLE: Yes, it was. The court split ideologically, as well as in the Voting Rights Act.

JEFFREY BROWN: Is it a different ideology?

MARCIA COYLE: It’s slightly different. Justice Breyer joined the majority in the Indian Child Welfare Act. Justice Scalia joined the dissenters. He said the father is the biological parent, wants custody, he’s fit, he should have it.

JEFFREY BROWN: All right. And now we know that we are going to see you tomorrow, right?

MARCIA COYLE: Yes. Tomorrow is the last day of the current term, and we’re expecting to see how the court wraps up the two same-sex marriage laws.

And then there’s another case that probably nobody will have any interest in whatsoever tomorrow.

JEFFREY BROWN: We have got a lot of interest in what comes out of tomorrow.

MARCIA COYLE: Absolutely.

JEFFREY BROWN: And we will see you. And we have a cot down the hall if you want to stay over the night.

MARCIA COYLE: Thank you.

JEFFREY BROWN: But we will see you tomorrow. Marcia Coyle, thanks.

MARCIA COYLE: Thank you. My pleasure.

GWEN IFILL: And we’ll have more on next steps for the Voting Rights Act shortly.