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In a 5-4 decision, the U.S. Supreme Court on Tuesday struck down a major component of a 1965 voting rights law intended to prevent racial discrimination in voting. The decision invalidates the formula that determines which states with a history of voter discrimination must have federal pre-approval to modify their voting laws. We explore the ruling and what it means both locally and in states around the country.
- Spencer Overton Professor, George Washington University Law School
- Stephen Wermiel Professor of Law, American University Washington College of Law
MR. MARC FISHERFrom WAMU 88.5 at American University in Washington welcome to "The Kojo Nnamdi Show," connecting your community with the world. I'm Marc Fisher of The Washington Post sitting in for Kojo.
MR. MARC FISHERComing up later in the hour, tips and destinations for summer travel, but first, the Supreme Court and the future of the Voting Rights Act, the court ruled this morning by a five, four opinion that a major component of the Voting Rights Act of 1965 is unconstitutional.
MR. MARC FISHERThe justices essentially toppled practices used to determine which states have a history of racial discrimination and therefore must receive pre-clearance from the federal government before they can change their voting laws.
MR. MARC FISHERJoining us to explore what this means for states around the country including Virginia Stephen Wermiel is a Fellow in Law and Government at the American University's Washington College of Law where he teaches constitutional law and a seminar on the Supreme Court. He covered the court for The Wall Street Journal from 1979 to 1991 and Spencer Overton is a professor at the George Washington University Law School.
MR. MARC FISHERAnd we thank you both for joining us. Stephen Wermiel, the justices in the majority ruled that Section 4 of the Voting Rights Act is unconstitutional. What exactly were they throwing out and how does this ruling affect the rest of the act?
MR. STEPHEN WERMIELThanks Marc, glad to be with you. The Section 4 spelled out the formula by which states and local jurisdictions were included in this very powerful weapon in the Voting Rights Act called the pre-clearance provision where they couldn't make any changes in their voting. They couldn't move precincts. They couldn't change the ballot without getting the approval of the Justice Department or of a special federal court.
MR. STEPHEN WERMIELAnd they were covered under that pre-clearance provision by the formulas in Section 4 which were adopted all the way back in the civil rights era in the 1960s, modified a little bit in the 1970s. But the court objected that Congress had kept reauthorizing the bill without updating or modernizing the formulas.
MR. STEPHEN WERMIELSo now we still have this pre-clearance process, but we don't really have any way to enforce it because we don't know who it covers.
FISHERSo it's essentially being held in abeyance until Congress makes a fix that the court had actually already asked them to make back in 2009, the last time a Voting Rights Act case came before the court. And the court said you know, you're still operating under this 1960s provision that determines which locations are covered by the Voting Rights Act and you ought to do something about it and Congress did nothing.
FISHERSpencer Overton, is there any reason to believe that Congress would do something this time?
MR. SPENCER OVERTONWell, I think there are good reasons. I mean Congress did actually 98 to 0 on the Senate side and a similar bipartisan majority on the House side, it did renew Section 5 of the Voting Rights Act in 2006 so I think that there's a good possibility that Republicans can work with Democrats.
MR. SPENCER OVERTONI know that a lot of people have talked about Congress being polarized here but this really is not a partisan issue. If you look at 85 percent of the Voting Rights Act violations basically blocked by Section 5, 85 percent of those are from local jurisdictions and many of those are non-partisan elections.
MR. SPENCER OVERTONSo this really isn't a partisan issue so I think that there is hope for Republicans and Democrats to work together to update the coverage formula.
FISHERWell, it's an optimistic view and it's always good to be an optimist but in a harshly-divided polity as we have these days it's, there's certainly a question as to whether you would have say Democrats saying that basically some of the similar measures should be used to determine whether states are, and localities are discriminating or have the circumstances that would require federal jurisdiction.
FISHERAnd then you might have Republicans saying that the very states that have sought to limit voting through voter identification laws in recent months and years that perhaps they would certainly look at that in very much the opposite way of Democrats. Would that be a hurdle that would be tough for Congress to get past, Stephen Wermiel?
WERMIELWell, hurdle is really the popular narrative about that in terms of access versus suppression and this is a partisan issue. Again, 85 percent of these objections are in local races. Many of them are non-partisan. You look at a place like Nueces County, Tx. where the rapidly-growing Latino community surpassed 56 percent of the county's population and in response county officials gerrymandered local election districts to weaken votes by Latinos.
WERMIELNow, without Section 5 protections to block this type of racial manipulation Americans in many areas like Nueces County won't have the thousands and sometimes millions of dollars needed to bring a lawsuit to stop these unfair changes.
WERMIELYou know, Americans are changing. America, the country, is changing. You know, Latinos and Asian-Americans are the fastest-growing racial groups and I think politicians of all backgrounds have an incentive to ensure that all Americans can vote in a free and fair way.
WERMIELCertainly those areas that have recent voting rights violations and those who violate the Voting Rights Act in the future, those areas should certainly be subject to pre-clearance.
FISHERYou can join our conversation. If you have a question about the Voting Rights Act ruling by calling 1-800-433-8850. Attorney General Eric Holder reacted to the ruling just earlier today and here's what he had to say.
ATTORNEY GENERAL ERIC HOLDERThese problems have not been consigned to history. They continue to exist. Their effects are real. They are of today, not yesterday and they corrode the foundations of our democracy. Our country has changed for the better since 1965 but the destination that we seek has not yet been reached.
FISHERStephen Wermiel, what do you think would be the practical impact if there is a stalemate and failure by Congress to act, to renew or revive the Section 4 of the act?
WERMIELWell, I would like to agree with Spencer's optimism and I absolutely hope he's right. I think the question of whether we need pre-clearance is an easier question than the question of members of Congress from both sides of the aisle sitting down and writing a new definition of what triggers pre-clearance.
WERMIELI'm afraid that's a little more complicated and may not be as simple to get bipartisan support and I think it's going to take substantial documentation of what, agreement on what the current problems are, what causes them and how you document them in order to get Congress to pass a new Section 4.
WERMIELWithout that, you know, we're still left with a very powerful weapon in the Voting Rights Act, Section 2 but Section 2 is much more difficult. Section 2 basically says anybody who is discriminated against can sue but that puts the burden on individuals to have to establish the discrimination, to bear the costs of the litigation. It doesn't give them the powerful weapon of the government on their side.
FISHERSpencer Overton, we've heard from a lot of Democrats including the president this morning saying that this is a disappointing decision and saying that this could pave the way for further discrimination to occur, for states and localities to attempt to limit voting in new ways.
FISHERBut in Virginia, Governor Bob McDonald said in a radio interview just a couple of hours ago that Virginia may now have to delay or suspend implementing its new voter ID law because of this decision. So couldn't this Supreme Court ruling actually cut the other way and prevent some states from limiting voting in ways that they have in recent years by requiring for example, photo identification?
OVERTONWell, you know, again, I think that this focus on photo identification and the focus on some of the other issues that are partisan issues really kind of detract from the real core of the Voting Rights Act and the heavy lifting that it does. Often those changes receive, you know, national news attention.
OVERTONThe Justice Department or voting rights groups bring lawsuits to challenge them and we can tell if a law is really fair or not. But these little changes in these little, you know, townships and villages in various places in the country, I think that those are the big issues.
OVERTONAnd one advantage as Stephen was pointing out, is that litigation unfortunately is so expensive. It puts the burden on the victims of discrimination and also it's not comprehensive. Somebody actually has to bring a lawsuit. The benefit of pre-clearance was that everything gets reviewed and because everything gets reviewed there's a lot of bad activity that is deterred so we need to update pre-clearance.
OVERTONWe need to expedite litigation and update litigation and the third piece on that is we need more disclosure of these election changes so that we and I'm not talking about pre-clearance. I'm talking about disclosure of changes and their effects so that political operatives are deterred from bad acts.
FISHERThe main thing that seemed to bother some of the justices, at least in the majority, is this question of defining the localities that will get this extra degree of inspection by acts that took place half a century ago. Is there a more contemporary measure that would be useful in determining where the federal government should take the place of, or at least take supervision over local authorities because of current discrimination. Stephen Wermiel, why don't you start?
WERMIELAh, you know, the people that practice in this field think it has been working just fine. The part we haven't talked about yet is what's called the bailout provision. So there are two kinds of scenarios here. There are places where voting rights changes get made and they have to be pre-cleared and there's probably pretty good reasons why they have to be pre-cleared.
WERMIELThere are many jurisdictions, localities that are still discriminating. The bailout provision allows localities to ask to get out from under the pre-clearance and there have been hundreds of bailouts approved by the Justice Department where the record of discrimination was no longer such that it required continued, you know, superintendency by the attorney general.
WERMIELSo the people in the field think this has actually been working pretty well and doesn't need this kind of refinement.
FISHERSpencer Overton, there's a long list that the Department of Justice has on its website of these localities that have bailed out in this way. They've gotten permission not to be supervised by the federal government anymore. They include a lot of places here in the Washington area from the City of Winchester to Frederick County and so on, to the Shenandoah.
FISHERIs there any evidence? Have there been any studies that would make us believe that the supervised states and locations are really that much more involved in trying to limit people's voting rights than the rest of the country?
OVERTONWell, that bailout, as you'll remember, a quarter of Virginia counties have already bailed out. If you have a clean record for ten years, you could bailout. But bailout to a certain extent after today is a question of the past, right? The question right now is which area should Congress cover moving forward?
OVERTONAnd certainly those areas with recent voting rights violations and those places that violate the Voting Rights Act moving forward, those places should certainly be covered. I mean if someone breaks the law there is a, you know, they're supervised by the corrections system. Obviously this is a different context but this notion of supervision for a period of time if you violate the Voting Rights Act I don't think that that is unreasonable.
OVERTONWe also need to again, expedite this litigation. So what do we need to do? We need to make it easier to get an injunction, to block a discriminatory law, get that from court so that that doesn't even go into effect in the first place. There are some other things we need to do to kind of put more of a burden on these jurisdictions to show that a rule is fair. You know, they have all the information. We shouldn't make these voters go on a fishing expedition and hire experts and lawyers and have discovery just to make a voting rights claim. So we need to put more of that burden on the jurisdictions. And then finally, like I said, this transparency piece I think is important as well.
FISHERWell, we'll have to see what Congress does. Spencer Overton is a professor at the George Washington University law school and Stephen Wermiel is a fellow in law and government at American University's Washington College of Law. Thanks very much to both of you for joining us on short notice. When we come back after a short break, a change of tone as we talk about this summer. The heat is picking up and it's time for vacations. Where to go, where to stay, how to
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