Supremes to Congress: Update the Voting Rights Act

To go by some of the headlines today, you'd think the Supreme Court had thrown out the landmark Voting Rights Act of 1965. They didn't. What they did do, however, is significant and needs to be understood in its larger context.

What the Supremes struck down by a 5-4 vote was a formula devised by Congress in a 2006 update of the law that determined which local governments would be required to clear voting law changes in advance with the federal government. In essence, the Court said Congress was using outdated facts that failed to take into account that things have changed over the course of half a century. And indeed they have. The gap between black and white voter registration - which was massive in 1965 - has disappeared. The lack of black elected officials in the south is now a thing of the past. So the Court majority, in issuing its ruling, left the rest of the Voting Rights Act intact and challenged Congress to come up with new legislation to address the matter of how to determine when a locality needs to be subjected to federal oversight.

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This seems like a very reasonable approach to me, but whenever it comes to voting law, I like to get the perspective of my friend Jocelyn Benson, who is the dean of the Wayne State University Law School, is a Democrat, and is a very solid authority not only on voting law in general but on the Voting Rights Act in particular. She has said on more than one occasion that the VRA was the reason she became a lawyer. According to Benson, the Court reviewed plenty of evidence to show that discrimination still exists in the affected localities, and simply ignored that evidence to reach the ruling. We didn't get into specifically what the evidence was so I can't judge how compelling it might have been. But she does agree that it's game on with respect to new legislation in Congress, saying:

The Court’s decision was a striking act of judicial activism that ignored a voluminous legislative record steeped in examples of ongoing acts of voting discrimination in certain parts of our country. The five Justices in the majority assumed that because threats to our democracy do not come in the dramatic form of tear gas and billy clubs, they are somehow less real. But democracy is threatened any time an eligible voter is disenfranchised, every time a law is enacted on specious grounds that extend the time required to register or to cast a ballot, and any time gerrymandering results in districts that silence a community’s voice. It’s now up to Congress to work together forcefully and effectively to ensure our fundamental right to vote is secure and protected for every American citizen. This is a bipartisan goal and it needs to happen soon. Every citizen of this country should demand that Republicans and Democrats in Congress embrace the court’s call to revise and update the law in accordance with today’s decision.

I agree with Benson on the importance of the Voting Rights Act, and the absolute necessity of keeping it strong and preserving the results it has produced. And I see this ruling as an opportunity to make it even better. There is no reason all the same communities that were subject to federal authority in 1965 should remain under that authority today. No one has gotten their act together such that they can be freed from federal oversight? No one? This is a great opportunity for Congress to strengthen the Voting Rights Act by creating a new formula that doesn't rely on facts from the world of 50 years ago, but still protects the principle that there is no place for voting discrimination in this country.