In the first of a series of articles analyzing the recent Supreme Court decisions, HPR staff writer Matt Weinstein considers the Court’s decision in Shelby County v. Holder and the political aftermath.
On Tuesday, June 25, in a 5-4 decision written by Chief Justice Roberts, the Supreme Court invalidated Section 4 of the Voting Rights Act (VRA). Section 4 used data from the 1972 presidential election to identify jurisdictions that engaged in voter discrimination. The Court did not address the VRA’s Section 5, which requires jurisdictions covered by Section 4 to obtain “preclearance” from the Department of Justice before making changes to any voting procedures. However, since Section 5 preclearance depends on Section 4’s identification system, the Court’s ruling rendered Section 5 inoperative until a modified Section 4 is enacted.
As predicted, the Court’s ruling to strike down Section 4 was met with embellished hysteria from many media outlets. One noteworthy criticism, written by The New York Times’ Editorial Board, declares Chief Justice Roberts’ opinion “intellectually dishonest.” The Times charges that the Supreme Court’s invitation to Congress to rewrite the Section 4 formula “has a disingenuous ring,” since “the justices know full well that lawmakers, who failed to expand the coverage formula in 2006, are extremely unlikely to do it now.” Later in the editorial, the Times justifies its contention by arguing that Congress is unlikely to act because it is “paralyzed by partisanship.”
However, the Times’ argument that the Court’s decision has the practical effect of permanently invalidating both Sections 4 and 5 is incorrect because it vastly oversimplifies congressional partisan gridlock in two important ways. First, it fails to analyze the current composition of Congress and its members’ past voting histories. Second, it fails to acknowledge the political pressures currently facing Republicans in their attempt to appeal to minority voters.
If statements by President Obama, Senate Majority Leader Reid, and House Minority Leader Pelosi are any indication, Democrats will move swiftly to draft a modified Section 4. In 2006, Congress reauthorized the Voting Rights Act for an additional 25 years with extraordinary bipartisan majorities of 98-0 and 390-33 in the Senate and House, respectively. Based on this overwhelming support to continue preclearance in 2006, Congress should not have much difficulty amassing a majority coalition to pass a modified Section 4 in 2013.
In 2006, no congressional Democrat voted against reauthorization. A modified Section 4 should receive near unanimous support from the 52 Senate Democrats (54 if Democratic-leaning independents are included) and 201 House Democrats. Assuming widespread Democratic support, a modified Section 4 would need support from fewer than 10 Senate Republicans and 20 House Republicans to ensure passage.
The Times correctly observes that in recent years, Republicans have been resistant to supporting Democrat-initiated legislation. However, the combination of voting math and political realities means that a modified Section 4 bill has the potential to buck that trend. In the House, there are 74 Republicans, including Speaker Boehner, who voted for reauthorization in 2006 and remain in office today. Even if every Republican elected to office after 2006 opposed a modified Section 4, the bill would need support from fewer than half of the 74 House Republicans who voted for the 2006 reauthorization in order to pass.
A similar story unfolds in the Senate, where 20 Republicans who supported the 2006 reauthorization remain in office. Once again, ignoring Senators elected to office after 2006, Democrats would only need to find 8 Republicans wishing to maintain their 2006 support for the VRA in order to break a filibuster. Thus, while the Times is correct that Congress is often bogged down in partisanship, on the issue of voting rights and federal preclearance, the two parties have shown their willingness to work together. Assuming legislators in 2006 supported reauthorization because they genuinely believed that preclearance was necessary to prevent voter discrimination, there is little evidence those sentiments have changed in the past seven years.
While this voting math by no means guarantees passage of a modified Section 4, it does show that the prospects for such passage are much brighter than the Times’ forecast. However, beyond simple vote counting, the Times also fails to consider the political realities facing Republicans who may contemplate opposing a modified Section 4. As shown by their recent willingness to work towards immigration reform, many congressional Republicans believe their party must adapt its ideology to more broadly appeal to minority voters. The last thing they want is to open themselves up to accusations of suppressing minority voting rights.
Indeed, the political pressures of a modified Section 4 vote would be quite similar to the pressures Republicans experienced this spring when voting to reauthorize the Violence Against Women Act. In addition to their effort to appeal to minority voters, many congressional Republicans have recognized the need to attract more support from female voters. As a result, nearly half of congressional Republicans supported the Democrat-led reauthorization of the Violence Against Women Act, giving the Act sufficient votes to pass both houses of Congress. President Obama signed the bill in May. Similarly, while some Republicans will invariably choose to ignore political pressure to broaden the party’s appeal, many others will heed such pressure when voting on a modified Section 4.
One would like to think that the support Republicans showed for the 2006 Voting Rights Act reauthorization is grounded in a genuine commitment to root out continued voter discrimination. If this is the case, then many Republicans will support a modified Section 4. However, even if Republicans in 2006 were motivated merely by political pressure rather than personal conviction, the same political pressure exists today and should inspire Republicans to support a modification of Section 4 later this year.
Admittedly, the situation is not exactly the same as in 2006. Congress now faces the task not only of reauthorizing an existing law but of devising a new coverage formula. Negotiations over which locations warrant preclearance will undoubtedly fracture the uniform support the 2006 reauthorization bill enjoyed. However, the widespread genuine support for federal protection against voter discrimination, combined with political pressure faced by Republicans, will likely prevent the negotiation process from derailing Section 4 reform.
Charging a majority of the Supreme Court with intellectual dishonesty is a serious accusation that must be factually supported. Instead, the Times’ editorial is laced with unsubstantiated claims that Chief Justice Roberts intentionally concealed his desire to invalidate all federal preclearance policies inscribed in the Voting Rights Act. In a display lacking intellectual candor, the Times fails to consider both Congress’ voting history and the country’s current political pressures. Both these factors indicate that, while not guaranteed, there is a realistic chance that Congress will enact a modified Section 4 that will serve as a strong additional tool for the government to prevent voter discrimination.