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Is The Voting Right Decision A Step Backward?

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.