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Supreme Court voids vital part of ’65 Voting Act

Calls formula outdated; ruling worries activists

Representatives from the NAACP Legal Defense Fund stood outside the Supreme Court in Washington on Tuesday.J. Scott Applewhite/associated press

WASHINGTON — The Supreme Court on Tuesday invalidated a key provision in the 1965 Voting Rights Act that is intended to guard against discrimination at the ballot box, raising concerns among civil rights activists that the decision will spawn new laws making it harder for minorities to vote.

In a 5 to 4 ruling, the court deemed it unconstitutional for the federal government to use an outdated formula to single out states for extra scrutiny of their voting procedures.

Under the Voting Rights Act, federal authorities must approve the voting procedures of nine states, mostly in the South, that were selected in the 1960s and 1970s because they displayed a pattern of discrimination against black voters. Residents in some states, for example, were not allowed to vote unless they passed a literacy test, and turnout was low.


The court majority said the criteria for picking states and other jurisdictions are based on decades-old data, and the suspect practices that prompted the law no longer exist. Literacy tests have been banned for 40 years. Voter registration and turnout in the nine states have increased dramatically. And African-Americans have been elected in record numbers to political office, including the presidency. The formula used for identifying states has “no logical relation to the present day,” the court majority said.

“Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were,” Chief Justice John Roberts wrote in the opinion. He was joined by the four other conservative-leaning justices – Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito.

Senator William “Mo” Cowan, a Massachusetts Democrat and one of only two black senators, said he was disappointed by the court’s decision to weaken the Voting Rights Act and hopes Congress can “come together and move swiftly to rectify this detrimental action.”


The court, in striking down an act of Congress, seemed to chastise lawmakers for leaving in place the outdated formula to determine which states needed federal oversight when it reauthorized the Voting Rights Act in 2006.

“Its failure to act leaves us today with no choice,” Roberts wrote in reference to Congress. “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.”

In a sharply worded dissent, Justice Ruth Bader Ginsburg questioned why the majority threw out a vital section of the Voting Rights Act that enabled the federal government to ensure that states were not discriminating. She said the law “has worked and is continuing to work to stop discriminatory changes,” arguing that the majority’s logic was akin to “throwing away your umbrella in a rainstorm because you are not getting wet.”

Ginsburg stressed that Congress reauthorized the law after finding that “voting discrimination had evolved into subtler second-generation barriers.”

Ginsburg was joined in her dissent by liberal-leaning justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

While the court left the rest of the act intact, legal specialists say that the ruling spells a sea change in civil rights and voting rights litigation. Voter advocates fear that some state legislators, emboldened by the ruling, could now have an easier time passing so-called voter suppression laws – cutting back on early voting days, Sunday voting, and same-day registration, and requiring government-issued identification at the polls.


The Voting Rights Act has a storied history. One trigger for its passage was the March 1965 murder of James Reeb, a Dorchester minister and civil rights activist, on a sidewalk in Selma, Ala. The killing of Reeb, along with two other activists, Jimmie Lee Jackson and Viola Liuzzo, was widely credited with moving Congress and President Lyndon Johnson to ban discriminatory voting practices and ending the disenfranchisement of black voters.

During oral arguments in February, Roberts made the erroneous declaration that Massachusetts had the worst ratio of white voter turnout to African-American voter turnout, as well as the greatest disparity in voter registration – a mistake that Massachusetts Secretary of State William Galvin characterized as a “cheap shot.”

The lawsuit was brought forth by Shelby County, Ala., which argued that the extra federal scrutiny is unfair. Roberts seemed to use Massachusetts as an example to argue that it was a state exempt from the extra federal scrutiny yet less successful in providing ballot access.

In fact, according to Galvin, Massachusetts has one of the highest voter registrations in the country.

Roberts emphasized in his opinion that the court’s ruling does not impact the permanent, national ban on racial discrimination in voting. Congress may draft a new formula based on current conditions, the court said.

President Obama called Tuesday for Congress to pass legislation to ensure equal access to the polls, saying the court’s decision “upsets decades of well-established practices that help make sure voting is fair, especially in places where voting discrimination has been historically prevalent.”


But many advocates and even some lawmakers remain skeptical of how much Congress can really do in an age of partisan paralysis.

Representative Sheila Jackson Lee, a Texas Democrat and member of the House Judiciary Committee who participated in the bipartisan reauthorization of the law in 2006, said the makeup of Congress has changed since then.

“The present Congress will see nothing but obstruction, delay, and the introduction of voter suppression laws,” Jackson Lee said.

Allison Riggs, staff attorney at the Southern Coalition for Social Justice, a Durham, N.C.-based nonprofit representing plaintiffs in several states in lawsuits over racially motivated redistricting, said there would be a rush by some states to enact new voter identification laws.

Minutes after the court’s decision, Texas Attorney General Greg Abbott vowed — via Twitter — to immediately implement a controversial voter identification law that had previously been struck down for violating a section of the Voting Rights Act.

Texas is one of the nine states subject to federal clearance of any changes to voting procedures.

The others are: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, and Virginia.

In addition, jurisdictions in other states have also been affected by the act — including, until earlier this year, New Hampshire.

The election practices of 10 small towns in New Hampshire were supposed to have been subject to federal scrutiny for 40 years because of suspiciously low voter turnout in the 1960s. It was never determined what caused the low turnout, although some have attributed it to a freak snowstorm. Until recent years the state, which is 95 percent white, had never submitted any changes on behalf of the towns for federal approval and the federal government never asked about it.


Tracy Jan can be reached at tjan@globe.com. Follow her on Twitter @GlobeTracyJan.