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In 5-4 Decision, Voting Rights Act, Section 4, Declared Unconstitutional

by Tanya Domi on June 25, 2013

in Op-Ed,SCOTUS,Tanya Domi

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 The Supreme Court declared Section four of the 1965 Voting Rights  Act invalid today, in a 5-4 decision that a number of legal experts are characterizing as a “gutting” of the law

Today, in the most plain English one can muster, the Supreme Court of the United States gutted the Voting Rights Act of 1965 by striking Section Four and declaring its formula used to determine voting rights discrimination  as unconstitutional.

A summary from the SCOTUS Blog:

The Court issued its decision in Shelby County v. Holder, the challenge to the constitutionality of the pre-approval  procedures,  that was designed to prevent discrimination in voting by requiring all state and local governments with a history of voting discrimination to get approval from the federal government before making any changes to their voting laws or procedures, no matter how small.

Chief Justice John Roberts issued the opinion, who was joined by Justices Scalia, Kennedy, Thomas, and Alito,but did  not invalidate the principle that pre-approval can be required.   But held that Section Four of the Voting Rights Act, which sets out the formula that is used to determine which state and local governments must comply with Section Five’s pre-approval requirement, is unconstitutional and can no longer be used.

Although Section 5 survives, it will have no actual effect unless and until Congress can enact a new statute to determine who should be covered by it.

My personal opinion is that this decision in Shelby in striking down Section Four, even if the Court they did not strike Section Five, they eliminated the manner in which the data was calculated to enforce Section Five for federal protection. This cannot be a good development. I am shocked to admit that I do agree with  Justice Thomas who wrote if you strike Section Four, you should strike Section Five.

In fact, that is what the majority has done in Shelby.

Chief Justice Roberts writes: “Coverage today is based on decades-old data and eradicated practices.  He also wrote:  “In 1966, the formula was rational in both practice and theory.”

Clearly, the Chief Justice does not give credence to the thousands of Americans who are persons of color and are routinely harassed in their attempts to vote.  Often they are required to stand in line for hours before casting a vote– the most basic and fundamental act of citizens who live in a democracy.  We only need to recall the persistent efforts of political adversaries around the country and their zealous efforts to change voting rights procedures and requirements in many States during the run-up to the 2008 presidential elections, to understand the extent to which the opposition is intent on manipulating the ballot box in their concerted efforts to obstruct the rights of minority voters to cast their vote.

The extensive damage enacted by the Court today, can only be undone and reversed by the Congress of the United States.  Good luck with that. This Congress is much more engaged in obstructing government, rather than making processes easier for it’s citizen to access government to improve their lives.

Here is the Court’s opinion in Shelby.  Tomorrow, the Court will issue decisions in the Proposition 8 and DOMA cases.  Tune in at 10:00 a.m.

Image of the Supreme Court is courtesy of Flickr!


Tanya domi 1.2010Tanya L. Domi is the Deputy Editor of the New Civil Rights Movement.  She is also an Adjunct Assistant Professor of International and Public Affairs at Columbia University and teaches human rights in East Central Europe and former Yugoslavia. Prior to teaching at Columbia, Domi was a nationally recognized LGBT civil rights activist who worked for the National Gay and Lesbian Task Force during the campaign to lift the military ban in the early 1990s. Domi has also worked internationally in a dozen countries on issues related to democratic transitional development, including political and media development, human rights and gender issues. She is chair of the board of directors for GetEQUAL. Domi is currently writing a book about the emerging LGBT human rights movement in the Western Balkans.

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{ 1 comment }

sdfrenchie June 25, 2013 at 2:51 pm

This does not bode well for the decisions on DOMA and equal marriage. If five justices are voting against fairness in voting, it seems that their ties with the Republican party are much tighter than anyone could have hoped.

These justices cannot possibly be blind to the circumstances of the last election and the rhetoric coming from state legislators all over red America at the present time. GOP certainly fits with the color red. We seem to be growing closer and closer to communist rule.

We'll see what tomorrow brings. Even though I have no intention of getting married in my old age, I would like to see any LGBT person who does want to get married being allowed to across the entire nation, not just the blue states. If SCOTUS votes to keep DOMA and votes to keep Prop. 8 in place, the states that have already allowed LGBT marriage could possibly lose that right if the bigots have their way.

They've delayed the announcements on these issues for a reason, I'm sure. Either they're going to have to suffer our outrage or they're going to have to hide from the hate groups who have threatened in so many words to commit anarchy and/or civil war. So, yeah. We'll see if these justices have any guts or not.

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