Civil rights leaders across the country are reacting with anguish to the U.S. Supreme Court decision concerning the Voting Rights Act. It's an understandable response given the significance of this landmark legislation. But the ruling ultimately was less a nullification of the law as it was an indictment of Congress.
Washington lawmakers have had ample opportunity to upgrade the infrastructure in the 48-year-old law protecting individual voting rights. But it has declined to do so, leaving the Supreme Court little choice but to rule that the blocks on which the law was based are too old to pass constitutional muster anymore.
The problem is a formula contained in Section 4 that's used to determine which states must receive preapproval from federal officials before any changes can be made in election procedures. The requirement currently applies to nine states, most of them in the South, as well as certain cities, counties and jurisdictions in six other states, including California.
In its 5-4 decision, the majority held that the formula, which hadn't been updated since 1975, is outdated and thus unconstitutional.
"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," Chief Justice John Roberts wrote for the majority.
Opponents presented compelling arguments about how the Voting Rights Act, as written, puts states that still require preclearance at an unfair and seemingly endless financial disadvantage despite gains some have made in minority registration and the elimination of discriminatory barriers over the years. Meanwhile critics note how the formula makes it difficult to apply the act in areas that do not now require preclearance but where there's evidence of a new generation of potentially discriminatory practices through such tactics as the elimination of district elections, the closing or moving of polls due to budget cuts and voter identification requirements.
Justice Ruth Bader Ginsburg, who dissented, noted her concern about the inability, without Section 4, to confront these "second-generation barriers."
Fortunately, few on the court cast doubt on whether the Voting Rights Act was either effective or still needed. In fact, Roberts was straight forward in noting that the 1965 law had been a "resounding success." Section 5, which maintains federal oversight on preclearance areas, remains in force, while the court swung wide the door for Congress to make the necessary fixes to restore Section 4. Roberts challenged Congress to draft a formula that does not rely on "decades-old data."
Congress can and must develop a new process for identifying jurisdictions that should be subject to federal scrutiny on voting procedures.
Nonetheless, the question remains whether Congress will rise to the challenge or, whether it, too, lacks the internal infrastructure — and intestinal fortitude — to meet the contemporary needs of Americans and protect their rights.
So far, the evidence is not encouraging.