The Supreme Court’s 5-4 ruling striking down key provisions of the Voting Rights Act, for the moment at least, eliminated the requirement that jurisdictions with a history of discrimination pre-clear election and voting law changes to ensure they do not disenfranchise minority voters. While the remaining provisions will still ban outright racial discrimination, those states and localities previously covered will now be able to implement changes first and victims will have to prove discrimination after the fact.
In the past year, the U.S. Department of Justice denied pre-clearance to four laws it deemed discriminatory — and federal courts upheld three of those four determinations.
Several such laws will now undermine the right to vote because the pre-clearance tool has been removed. Among them:
Strict voter ID laws. Earlier this year, Virginia’s Republican-controlled legislature enacted strict photo identification requirements for all voters. While a 2012 state law had survived Department of Justice review due to its flexible list of acceptable ID options, the tougher 2013 photo ID-only restrictions will likely have a discriminatory effect and would thus have been unlikely to receive approval. Now, the strict requirements will go into effect and any challenge will require a disenfranchised vote to sue and prove injury. Similar restrictions will also now take effect in other states.
Racially-gerrymandered legislative maps. While the Supreme Court has made it clear in the past that redistricting cannot take into account the race of residents, the initial Texas redistricting plans appeared to do just that. A three-judge panel of federal judges found that the map was an example of racial gerrymandering and blocked it from going into effect. George W. Bush-appointee D.C. Circuit Judge Thomas Griffith noted that “substantial surgery” was done to predominantly black districts to cut them off from their representatives’ offices and their strongest fundraising bases, while the districts of white Congress members were either left untouched or were “redrawn to include particular country clubs and, in one case, the school belonging to the incumbent’s grandchildren.” But now these discriminatory maps will govern Texas House, Senate, and Congressional districts until someone can prove injury.
Blocking grassroots get-out-the-votes efforts. In anticipation of this very ruling, Arizona Republicans prepared a proposal to undermine voter turnout efforts common in Latino communities. The bill — which has already cleared the Arizona Senate — would make it a felony for anyone working or volunteering on behalf of a political committee or other organization to deliver mailed ballots to a polling place. Such grassroots campaigns identify voters who received mail in ballots but had not yet returned them, encourage the voter to fill out the ballot, and offer to return it to the polling place in order to make it as easy as possible for the voter to vote. Without the Voting Rights Act pre-clearance process, state laws like this will now go into effect and voters will need to prove racial discrimination to challenge it in court.
The 15th amendment to the U.S. Constitution guaranteed that the right to vote shall not be abridged on the basis of “race, color, or previous condition servitude.” It also expressly granted to Congress the power to “enforce this article by appropriate legislation.” Though bipartisan majorities in the Congress and President George W. Bush agreed that this legislation was still needed — and 81 percent of the voter discrimination complaints brought after the laws went into effect were in areas covered by the now eliminated pre-clearance jurisdictions — Justices Alito, Kennedy, Roberts, Scalia, and Thomas have seriously defanged that power and opened the door to significantly more voter suppression.