A divided U.S. Supreme Court on Tuesday dealt a crippling blow to the Voting Rights Act of 1965 by striking down the formula devised by Congress to determine which states are covered by the act.

“In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics,” Chief Justice John Roberts Jr. wrote for the majority. “Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”

By invalidating the coverage formula in Section 4(b) of the act, the court, in effect, rendered Section 5—the heart of the act—useless. Section 5 requires covered jurisdictions—those with a history of voting discrimination—to submit any changes in their voting practices for preclearance by the Department of Justice or the federal district court in Washington.

Roberts’ opinion in Shelby County, Ala. v. Holder was joined by justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito Jr. Thomas wrote a separate concurring opinion in which he said he would find Section 5 unconstitutional as well as Section 4(b). The court did not address the constitutionality of Section 5.

The majority’s decision drew a lengthy and angry dissent from Justice Ruth Bader Ginsburg, who was joined by justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

“Hubris is a fit word for today’s demolition of the VRA,” wrote Ginsburg who, in a signal of how strongly she felt, read a summary of her dissent from the bench. “Given a record replete with examples of denial or abridgment of a paramount federal right, the Court should have left the matter where it belongs: in Congress’ bailiwick.”

Civil rights organizations reacted swiftly to the decision, calling it “an act of judicial overreach,” “flagrant disregard to the present record of discrimination in covered states,” and “a real slap at Congress’ authority” under the Civil War amendments to address ongoing impediments to voting.

The leaders of most of those organizations, however, had suspected and feared the result reached by the court’s conservative majority following arguments in Shelby County last February. During those arguments, Roberts, Kennedy, Scalia and Alito voiced skepticism about the coverage formula and emphasized that the act burdened the “equal sovereignty” of the states. Scalia characterized the near unanimous support in Congress for reauthorization of the act in 2006 as reluctance to vote against a “racial entitlement.”

Many of those concerns were reflected in Roberts’ majority opinion. He wrote of the states’ broad powers to regulate elections and the “fundamental principle” of equal sovereignty among the states. The Voting Rights Act, he said, “sharply departs” from those principles and that is why the act’s “current burdens” must be justified by “current needs.”

The coverage formula, he wrote, met that test in 1965, but no longer does.

“Coverage today is based on decades-old data and eradicated practices,” he said. “The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. And voter registration and turnout numbers in the covered States have risen dramatically in the years since.”

He noted that the Obama administration and the act’s other defenders in the Shelby County challenge (the NAACP Legal Defense and Educational Fund and the American Civil Liberties Union) pointed to Congress’ thousands of pages of legislative findings as evidence of current need before reauthorizing the act. But, he wrote, “Congress did not use the record it compiled to shape a coverage formula grounded in current conditions. It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day.

“Congress may draft another formula based on current conditions,” he wrote. “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

Ginsburg countered that the fundamental question posed by the challenge is “who decides whether, as currently operative, Section 5 remains justifiable, this court or a Congress charged with the obligation to enforce the post-Civil War Amendments.” She answered, “When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress’ power to act is at its height.”

Congress took its reauthorization responsibility “conscientiously” in 2006, she wrote. The lawmakers compiled a 15,000-page record, held hearings in both chambers and heard from numerous witnesses.

“The compilation presents countless ‘examples of flagrant racial discrimination’ since the last reauthorization; Congress also brought to light systematic evidence that ‘intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed,’ ” she wrote.

She also noted that the number of discriminatory voting changes blocked or deterred by the Section 5 preclearance requirement “suggests that the state of voting rights in the covered jurisdictions would have been significantly different absent this remedy. Surveying the type of changes stopped by the preclearance procedure conveys a sense of the extent to which [Section] 5 continues to protect minority voting rights.”

The state of Alabama is fully covered by Section 5, and has been required to comply with the preclearance requirements since 1965. In April 2010, Shelby County filed a federal lawsuit challenging the constitutionality of sections 4 and 5. The lawsuit was initiated and funded by the Project on Fair Representation, an anti-racial classification organization headed by Edward Blum. A federal district court and the U.S. Court of Appeals for the District of Columbia, voting 2-1, upheld both sections.

Reacting to Tuesday’s ruling, Blum said, “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 apply equally to them.”

The county’s lawsuit was a facial challenge to the law, meaning that there are no circumstances under which the act would be valid. However, the county, represented by Bert Rein of Wiley Rein, conceded during high court arguments that it had recently run afoul of the act. In fact, Sotomayor noted that in the period covered by the reauthorization, Shelby County had 240 discriminatory voting changes that were blocked by Section 5 objections.

In her dissent, Ginsburg asked, “By what right, given its usual restraint, does the Court even address Shelby County’s facial challenge to the VRA?” She said from the bench, “Congress continued preclearance over Alabama, including Shelby County, only after considering barriers there to minority voting clout. There were many, they were shocking and they were recent. What has become of the Court’s usual restraint, its readiness to turn away facial attacks unless there is ‘no set of circumstances…under which [an] Act would be valid?’ ”

The nine states covered by Section 5 are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.

The court last considered the constitutionality of the Voting Rights Act in a 2009 case, Northwest Austin Municipal Utility District No. 1 v. Holder, but it avoided the constitutional question and resolved the case on statutory grounds.

“But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act,” wrote Roberts in his Shelby County opinion. “Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare section 4(b) unconstitutional.”

Marcia Coyle can be reached at mcoyle@alm.com.

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