SCOTUS Deals a Blow to The Voting Rights Act

The decision seems unnecessary and odd given the experience of the Act in New England.

The Supreme Court today dealt a blow to a key portion of the Voting Rights Act—a decision that might not have particularly large consequences for minority voters, but that seems odd and unnecessary given the experience of the Act right here in New England.

The ruling concerns Sections 4 and 5 of the Act. Section 5 dictates that the federal government must pre-approve any voting-related changes in some parts of the country; Section 4 outlines the “formula” that determines which parts of the country fall under those Section 5 requirements. Congress has occasionally updated the formula when re-authorizing the Act.

According to the initial reports, the conservatives on the Court, in a 5-4 decision, ruled that the formula as it currently exists is unconstitutional, meaning that the federal government must stop doing Section 5 pre-approvals until Congress re-writes Section 4, which could be a long time coming.

The arguments for eliminating or changing the pre-clearance formula are not unreasonable; what baffles me is why that’s a question of constitutionality, rather than an issue for congress to decide—which it did as recently as 2006 when choosing to leave the formula intact at the most recent re-authorization. I won’t pretend to be a Constitutional scholar, so I’ll leave it to others to parse how Congress lacked the authority to determine the formula under the remarkably simple language of the 15th Amendment:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

What I will say is that, contrary to the complaints one hears from other parts of the country about the oppressiveness of Section 5, up here in New England, we’ve somehow been able to handle it pretty easily.

Oh, you didn’t know the Act affected New England? Why it sure did. Past tense—because if you can go a stretch of 10 years without, you know, trying to screw over any minorities, it turns out that you get out of the whole Section 4/Section 5 thing pretty easily.

Maine had 18 towns that fell under pre-approval status, all of which got this “bailout,” as it’s called, in 1976. Three Connecticut towns got the bailout in 1984.

And yes, even Massachusetts had towns covered by the formula: Amherst, Ayer, Belchertown, Bourne, Harvard, Sandwich, Shirley, Sunderland, and Wrentham. They all got the bailout in 1983.

The last remaining New England laggards were 10 small New Hampshire towns: Antrim, Benton, Boscawen, Millsfield, Newington, Pinkham’s Grant, Rindge, Stewartstown, Stratford, and Unity.

Whenever those towns have wanted to, for example, use new voting machines or change polling places, they needed to inform the Department of Justice’s Civil Rights Division and get an OK first. And every new state law concerning voting laws—since they implicitly cover those towns—also required a letter to DoJ. As, for example, when New Hampshire decided, prior to the 2012 elections, to stop letting people apply to be on the ballot for Vice President without an accompanying Presidential candidate.

No more, however. In March, those New Hampshire towns got the bailout, too.

That leaves no part of New England covered any more. Certified 100 percent not horrible since March 2013!

That doesn’t mean we never try to screw over minority voters (intentionally or unintentionally) up here, but we have evolved to a point where we can be trusted to do things and then have them challenged in court by the ACLU and NAACP.

If we can do it, surely states like Alabama, Arizona, and Texas can, too. Unless they really are just worse at civil rights than they are. Which, if it’s the case, means the pre-clearance formula is justified after all.

  • Darren

    This article just oozes with explicit contempt for the South.

    As for legitimate indicia of non-racism, just look at the results of the black-white voting gap in the South as of 2004:

    Additionally, it appears that in New England, all preclearance was constructed on a township basis. In the South, it is constructed on a state-wide basis. Furthermore, only a few Virginian counties have been bailed out.

    Anyway, I do not exactly welcome the Supreme Court’s decision. But why employ sophistry to attack it?

    • tomstickler

      Perhaps that contempt is justified. While only certain townships in New England had a history of discrimination, it has been universal in many southern states.

      • Darren

        I am still waiting for specific evidence justifying contempt, rather than a smug, conclusory, ‘hey, New England got out of preclearance, why haven’t you?’ After all, if I can take five minutes to hunt and find a link, why can’t the author of this article do the same?

        • GriseldaBean

          You did find a lovely graphic. What you haven’t done is answer the author’s question: with a clear route to obtaining a pre-clearance bailout, why have the jurisdictions in question not taken it?

          • Darren

            Because the criteria are partially subjective:

            [Appealing jurisdictions] also must demonstrate that it has made constructive efforts to eliminate intimidation and harassment of persons seeking to register and vote and expand opportunities for voter participation, such as opportunities for registration and voting, and to appoint minority officials throughout the jurisdiction and at all levels of the stages of the electoral process.

            It would be better for Congress to adopt a wider net for preclearance, indeed, universal preclearance, than have extended this scheme.

            (still waiting on that evidence)

          • sugerman

            Easy enough. Just read Justice Ginsburg’s dissent. In it she lists multiple cases in which southern (including Texan) districts have passed laws contrary to the VRA. Here’s the link:
            Her dissent starts on page 29.

          • sugerman
    • GriseldaBean

      In fact it would appear that about 1/4 of the counties in Virginia have been cleared (full list of cleared jurisdictions, AND the criteria needed for clearance, here: So if it is absolutely possible to get out from under the VRA, perhaps a little contempt is in order for those that refuse to even try?

      • Turd Sandwich

        Why should a county have to waste time and money to try to be cleared – when any counties and states had no such pre-clearance requirement in the first place?

        If there is going to be a standard by which states are held accountable to pre-clearance, it should be measurable and applied across the board. Not just by some gut feeling of “the south is more racist.”

    • Andrew Glasgow

      Yes it does, and the South deserves every drop.