The heart of the most important voting rights law in American history, the law that tore down Jim Crow and welcomed African-Americans back into the franchise, is now dead. In a 5-4 decision decided on party lines, the Supreme Court’s Republicans declared unconstitutional the Voting Rights Act’s formula for determining which jurisdictions must “preclear” their new voting laws before they take effect, effectively rendering the entire preclearance regime inoperative for the time being.
While today’s decision leaves in place Section 2 of the Act, which allows people to sue after a racialized voter suppression law takes effect, this is cold comfort to voters in the areas previously subject to preclearance. As Justice Ruth Bader Ginsburg explained in her dissent, “[l]itigation occurs only after the fact, when the illegal voting scheme has already been put in place and individuals have been elected pursuant to it, thereby gaining the advantages of incumbency. An illegal scheme might be in place for several election cycles before a §2 plaintiff can gather sufficient evidence to challenge it.” The preclearance regime allowed voter suppression laws to be stopped before they could disenfranchise a single voter. Now, lawmakers have every incentive to disenfranchise their opponent’s voters in the hopes that a court will not get around to blocking this effort — or will lack an evidentiary record that will enable it to block the effort — until after the next election.
Yet, while preclearance lies still for now, it may later be revived either by Congress or by the courts. Here are three possible ways to undo what the Republican justices have done:
1. A New Act Of Congress
The Court’s decision pointedly does not declare any preclearance requirement unconstitutional. Rather, it rests upon the fact that the formula for determining covered jurisdictions closely resembles the formula that’s been in place for many years. “[H]istory did not end in 1965,” Chief Justice John Roberts proclaims with a flourish, “the coverage formula that Congress reauthorized in 2006 ignores” progress on voting rights, and any new law reinvigorating the preclearance regime must not “keep the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs.”
Yet, it’s not entirely clear how Congress can comply with this new requirement to base its voting rights framework only on fairly recent data. As Ginsburg lays out, when the Voting Rights Act was reauthorized in 2006, “[c]ontrolling for population, there were nearly four times as many successful §2 cases in covered jurisdictions as there were in noncovered jurisdictions.” The Justice Department blocked over 700 voting laws in the period between the last two reauthorizations, and states altered or withdrew another 800 proposed voting changes because of the preclearance rules. Despite the Republican justices’ claims, recent data presented a very compelling case for continuing the preclearance formula in effect.
Moreover, it what may be the most ominous line in Roberts’ opinion, the majority warns that “no one can fairly say that” current data “shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965.” The implication is that the Court’s Republicans may only let Congress revive the preclearance regime in areas where voter suppression is as severe as it once was in the Jim Crow south. Such a bar is difficult to square with the Constitution, which empowers Congress to enact “appropriate legislation” to ensure that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race.” But the words of the Constitution mean little if five justices are determined to strike a law down.
Until Congress’ current makeup changes, however, the biggest obstacle to a new law is probably not the Court — it is Congress itself. Seven years ago, Congress reauthorized the Voting Rights Act nearly unanimously, but the Republican Party has become an entirely different animal since then. It is not at all clear that lawmakers who belong to the party behind Voter ID, early voting restrictions, voter purges, and similar attacks on the franchise will be eager to reinstate a law making it more difficult to attack the franchise.
2. “Bail-In” Lawsuits
Although today’s Supreme Court decision lifts the preclearance regime in the areas currently covered by it, Section 3 of the Voting Rights Act does provide a mechanism to bring jurisdictions back under preclearance. Under Section 3, a federal court may place a jurisdiction under preclearance if, during the course of a Voting Rights Act lawsuit, it determines that “violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision.”
The problem with this solution is that Section 3’s language is very vague, and it has been used only very rarely — “[s]ince 1975, section 3 has bailed-in two states, six counties, and one city.” For this reason, there is very little precedent governing its use, and any new precedents will be set by the same Republican-dominated judiciary that just neutered the Voting Rights Act in the first place. The Justice Department and voting rights advocates should aggressively pursue Section 3 lawsuits, but they should expect a bumpy road ahead.
3. Fixing The Judiciary
Ultimately, supporters of voting rights need to acknowledge that today’s decision did not happen by accident. It happened because Republican presidents and conservative activists spent many decades lining the bench with staunch conservatives, and erecting roadblocks before judges nominated by Democratic presidents. Today’s decision is the culmination of many people working very hard for a really long time to build a bench friendly to conservatives.
Yet, for all of their efforts, Republicans only control five of the Court’s nine seats and today’s decision was decided by just a single vote. If voting rights supporters want to overrule today’s decision, their best option is to meet the GOP’s effort to control the bench with equal force. Just as George W. Bush filled the lower courts will young, brilliant, Supreme Court-eligible judges, President Obama must be able to do the same. When one of the conservatives steps down from the Supreme Court, they potentially give the president an opportunity to restore the Voting Rights Act in just one appointment — but the president needs to have someone to appoint.