The Precedent Behind the Court’s VRA Decision

The Supreme Court permits race to be taken into account in public policy but strikes down a key part of the Voting Rights Act out of concern that Congress didn’t adapt such policies to today’s circumstances, writes Richard H. Pildes.

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The Supreme Court’s decision holding unconstitutional a part of the Voting Rights Act (VRA) is one of most symbolically charged decisions in the court’s history. First enacted in 1965, the part of the law the court today struck down today—Section 4—was critical in breaking the back of the massive disfranchisement of African-Americans in the South that had been locked into place since the 1890s. This part of the act had created a regime wholly unique in American history. From 1965, those states and local governments that had massively disfranchised these voters could not make any change at all to any aspect of their voting systems—changes as small as the hours polls were open to changes as big as how election districts for Congress, the state legislature, and local governments were designed—without getting the federal government’s approval in advance. In essence, this system froze Southern electoral arrangements into place until the federal government approved any changes. The federal government then sent federal voter-registration officials into the South to take over registering voters, and this system began the process of tearing down discriminatory barriers to the vote.

Over the years, Congress remained the key actor. The question was how long this regime would remain in place and how it would be adapted over time to changing circumstances. Section 4 was unique because it singled out particular parts of the country for this dramatic federal control over their voting systems. At the time, it made nearly obvious sense to single out the six states covered, all of which were part of the old Confederacy. By 1975, nine states were covered (Texas, Alaska, and Arizona were added). And that’s when the system became locked into place. The parts of the country singled out in this way by 1975 have essentially remained covered ever since. Congress itself built in an original mechanism to force itself to update the statute: Congress had to decide to re-authorize Section 4 after five years, which it did, and Congress has had to revisit this part of the law regularly to keep it alive. Each time Congress did so, though, it did not change the formula in any way; by 2006, this system had been in place for 41 years. Congress was required to revisit the issues again in 2006, and this time it extended Section 4 for another 25 years—until 2031. And just as in the past, Congress did not change in any way the formula for which areas were to be covered under this unique regime. Thus, the same nine states that were covered as of 1975 based on their recent voting practices remained covered until 2031.

Now the story shifts to the court. Ever since the court’s first confrontation in the modern era with race-conscious public policies in the late 1970s, a majority of the court has decided cases on the following central principle: race can legitimately be taken into account for certain acceptable public purposes (colorblindness is not constitutionally required, in other words), but that has to be done in a way that ensures that these policies do not last indefinitely. That’s why the court said no to quotas, even as it said race could be taken into account as one factor in academic admissions. To the court, quotas were rigid and ran a much greater risk of being locked into place indefinitely. It’s also the reason the court said race could be used to remedy specific discrimination, but not to respond to more general ideas of societal discrimination—if the latter were constitutionally permissible, the majority of the court thought it would license race-based policies indefinitely. It’s the reason why Justice Sandra O’Connor wrote for the majority 10 years ago that race-based preferences in academic admissions should end in 25 years. And that brings us to today’s decision on the VRA.

To the majority of the court, when Congress re-enacted Section 4 until 2031, with no change at all to the formula that had put these areas under federal control no later than 1975, it was hard to see when this part of the VRA would end and when it would be updated to changing realities about where problems of race and voting rights remained most acute. The court held that by 2006 Congress had a constitutional obligation to examine contemporary evidence and to explain why it continued to make sense to single out the areas that had become covered in 1975 from now until 2031.

The effect of the court’s decision is that Section 4 cannot be used until Congress updates the pattern of areas to be covered and excluded with contemporary information about where problems of racial discrimination in the vote remain uniquely prevalent. Congress could do this by updating the formula or enacting other forms of protection for the right to vote (whether Congress will in fact do so in the short term is another question). But even if Congress does not act, there are many other existing sources of law—state and federal—that can be used today to protect the right to vote. There will be enormous fears fueled by the court’s decision of regression on this most fundamental of American rights. How effective these other legal protections will turn out to be now remains to be seen.