You've probably heard the news. But just in case it was a crazy day at work, you just came home from a backpacking trip in the remote wilderness, or you couldn't pull yourself away from a Keeping Up with the Kardashians marathon — the Supreme Court has ruled that a key provision of the Voting Rights Act (Section 4) is unconstitutional.
To follow me, you have to know five things:
- What the Supreme Court just invalidated is a formula first defined by Congress 50 years ago. The formula determined which jurisdictions had a demonstrable history of African-American voter disenfranchisement.
- The formula originally looked at whether the jurisdiction required voters to pass a test (such as a literacy test) and whether fewer than 50 percent of the eligible voters in that jurisdiction were registered.
- Jurisdictions covered by the formula were subject to something called "pre-clearance." That meant they had to get approval from the Department of Justice before making any voting changes.
- The number of places subject to pre-clearance has shifted a bit since 1965. Places that went 10 years without a record of voter discrimination could apply to "bail out" of the requirement. (Places could also be added to the list.)
- Congress last reviewed the pre-clearance formula in 2006. The Supreme Court looked at the Voting Rights Act in 2009 and foreshadowed that it would be taking a hard look at the requirements in the future.
Now the Supreme Court has said the formula is unconstitutional. If Congress deems it necessary to focus higher scrutiny on some jurisdictions, the court said, Congress must come up with a revised one. Champions of the Voting Rights Act have consistently made the point, on our air and elsewhere, that it is critical for Congress to come up with something.
Let's set aside, for a quick second, the fact that it seems like Congress is having a hard time agreeing on much of anything these days. Voter discrimination doesn't come in the form of literacy tests anymore. So how would a modern formula determine places that are prone to voter discrimination? If Congress did do something, what might that something look like?
"It looks like Congress' last reauthorization of the Voting Rights Act in 2006," said an audibly frustrated Nina Perales, civil rights litigator with the Mexican American Legal Defense and Educational Fund. "Look at the Congressional Record."
Perales told me Congress proved with 15,000 pages of documentation in 2006 that discrimination was still happening in the jurisdictions the coverage formula designated for pre-clearance. In other words: No need to fix what isn't broken.
Perales said every redistricting attempt in Texas (a state that was subject to pre-clearance) over the past five decades has been deemed discriminatory toward Latino voters. Perales had to rush off the phone because shortly after the SCOTUS ruling, Texas' attorney general announced that the Lone Star State's controversial voter ID law would take effect immediately. "Now we're in meetings, figuring out how to respond to that!" she said.
I asked a law professor.
"It's going to be difficult to write a 'modern formula,' " said Justin Levitt, associate professor of law at Loyola Law School, who focuses on redistricting. Levitt highlighted a phrase Chief Justice Roberts used to refer to the formula: "strong medicine." Levitt said SCOTUS wants modern examples of racial discrimination that justify taking that medicine.
Levitt mused that Congress could look at places with the most lawsuits brought under Section 2 of the voting act. He said legislators could examine national surveys on attitudes about race or other metrics of discrimination. Or Congress could look at regions where elected officials rarely match racial demographics. (Over at the Huffington Post, Spencer Overton raised similar ideas.)
But clear-cut modern examples of overt, intentional discrimination would be hard to find in a world where pre-clearance is working, Levitt said. To continue the medicine metaphor, he likened it to asking a patient three-quarters of the way through a prescription to stop taking it, and then hoping to find outward signs of sickness.
I talked to Wendy Weiser, director of the Democracy Center at NYU's Brennan Center for Justice, which recently produced a report, "If Section 5 Falls: New Voting Implications."
"Certainly we have thought about a variety of options," said Weiser. "But I don't want to prematurely zero in on one or many options available. There are several ways that Congress can restore what was lost; we just want to keep an open mind and promote that process." Weiser called the SCOTUS decision "a sad day for American democracy" but said she was cautiously optimistic that Congress would find a solution to reignite the power of pre-clearance. She was very careful, however, not to outline what a reconfigured solution might include.
As you can see, the answers weren't conclusive. (For more speculation on what might go into a revised formula, check out this New York Times graphic.) Although Voting Rights Act champions agree that Congress must do something, no one I spoke to would point to a formula Congress could adopt if legislators were to find the political will.
So I open it up to you. What do you think a modern coverage formula should look like?