Supreme Court guts the key gain of civil rights, scholars say

U.S. Supreme Court
The United States Supreme Court, the highest court in the United States, in 2010. Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg.
Steve Petteway, Collection of the Supreme Court of the United States

The Supreme Court's ruling Tuesday on the Voting Rights Act undoes one of the major achievements of the civil rights era, say a pair of legal scholars.

"This is an historic opinion," said Guy-Uriel Charles, the director and founder of the Duke Law Center on Law, Race and Politics. "It does damage to the heart of the act."

"The Voting Rights Act really was the major symbol of the civil rights era," he said. Now, he continued, the court seems to be saying, "We once had a vigorous commitment to things like affirmative action, to voting rights, and really going above and beyond to assure that citizens of color are fully committed and integrated. And ... we think we've accomplished that task and now it's time to move on to something else."

Heather Gerken, a professor at Yale Law School, called the Voting Rights Act "the crown jewel of the civil rights movement. There was nothing more effective than Section 5 in terms of remedying discrimination."

The decision announced Tuesday strikes down the enforcement mechanism of the act. Charles and Gerken appeared on The Daily Circuit shortly after the Supreme Court announced its ruling, and they explained how the act's different sections worked together.

"Section 5 is a quite unusual piece of legislation," Gerken said, "because it requires states passing election changes to do something called 'pre-clear' them, which basically means ask the Justice Department for permission before putting them into place. That is, needless to say, a highly unusual way to treat states, and for that reason Congress chose very selectively to focus that provision on a small number of states where there had been particularly egregious examples of racial discrimination in voting.

"Once you strike down the coverage formula, however, you strike down the heart of the act, because unless Congress can figure out some other way to target the appropriate jurisdictions, it's virtually impossible to pass something that would require that of every jurisdiction. We're in a spot where the court says it's only striking down part of the act, but it's striking down the most important part."

Charles agreed. "The key interlocking sections are 4 and 5. Section 4 tells you what is the harm you are targeting, and it enables you to understand which jurisdictions have to pre-clear. So if you strike down Section 4, then the pre-clearance of Section 5's requirement is basically superficial. It doesn't do any work.

"And so now when you've struck down Section 4, you've struck down the key component at the heart of the act."

Gerken called Section 5 "probably was the most important act passed by Congress during the civil rights movement. And it's gone."

Charles said Chief Justice John Roberts had signaled his view that race discrimination was no longer the problem it once had been in the South. But, Charles said, "We still see instances of racial discrimination in voting."

"There's a lot of anxiety in the communities here, especially in voting-rights communities, around the issue of voting and on the importance of the Voting Rights Act," he said. "So I am sure that here, in the activist communities that are concerned about voting rights, this opinion will be viewed with dismay."

Gerken said any progress that had been made was due to the Voting Rights Act. "One of my friends says it's like looking at someone with high cholesterol who's been using Lipitor for a while," she said. "And you say to them, well, you're doing fine, your cholesterol is down, everything must be fine, and you need to end the Lipitor. ... The fact that it's working has been the explanation for why we should strike it down now."

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