This past week, the Supreme Court handed down several landmark decisions.
While the decisions regarding the Defense of Marriage Act and Proposition
8 are a welcomed step forward for our nation, which our firm is happy
to see finally happen, the decision regarding the Voting Rights Act of
1965 might not be. Immediately after the decision, a democratic Representative
from Georgia, John Lewis, famously commented that "what the Supreme
Court did was to put a dagger in the heart of the Voting Rights Act."
In this decision the court struck down Section 4 of the Act. This section
provided for what has become known as "pre-clearance," which
is a process that jurisdictions and states that have histories of voting
discrimination have to complete in order to redraw their voting districts
or update their voting laws. This process was put in place to ensure that
no discriminatory voting practices occur, such as literacy tests designed
to eliminate minority voters.
In its decision, the Supreme Court found that a broad restriction on these
states and jurisdictions was no longer necessary. Supporters of the decision
argue that a majority of Voting Right Act cases brought today deal with
redistricting issues. These are known as second generation cases. Decades
ago, the cases that were originally brought, the first generation cases,
dealt with "ballot box issues" that specifically concerned an
individual voter's access to the ballot box. That support is weak,
however, when the data is actually examined. According to the Washington
Post, since 2011, "41 states have considered or passed legislation
restricting the right to vote." Many believe that several of these
states are now poised to bring forward new legislation that they knew
would not have previously passed the pre-clearance process. Supporters
of the Supreme Court's decision believe that minority representation
in state legislatures will help prevent discrimination.
However, Harvard Law School professor, Lani Guinier, who authored a well
known paper on the subject commented that "Black electoral success
has neither mobilized the black community nor realized the promised community-based
reforms." What we do know is that Section 4 was working, when it
was in place. It may have had a broad coverage over states that no longer
suffer from any discriminatory practices, but carelessly removing this
protection in its entirety will likely ensue in a flood of voting rights
cases as a backlash of this decision.