In a 23-page majority opinion, U.S. Supreme Court Chief Justice John Roberts said in effect, “That was then, this is now.”
The Court, in a 5-4 ruling in the case of Shelby County v. Holder, declared Section 4 of the Voting Rights Act unconstitutional, asserting certain states and jurisdictions shouldn’t be held to a different standard than other states when it came to conducting elections. The specification that some Southern states and certain counties to have their election law changes “precleared” by the federal government, the Court ruled in 1966, was a necessity driven by the conditions as they existed then.
“Since that time, Census Bureau data indicate that African-American voter turnout has come to exceed white voter turnout in five of the six states originally covered by (Section) 5, with a gap in the sixth state of less than one half of one percent,” Roberts wrote.
The majority held that because the barriers to voting in 2013 aren’t as they were in 1965 when the act was passed, Section 4 constitutes an unconstitutional intrusion into power held by the states by singling out specific states and jurisdictions.
Roberts’ opinion noted the act’s success as a reason why the exceptional circumstances for Section 4 no longer exist.
“There is no doubt that these improvements are in large part because of the Voting Rights Act,” Roberts wrote. “The act has proved immensely successful at redressing racial discrimination and integrating the voting process.”
A Kinston case, Nix v. Holder, was another one of the suits brought before the Supreme Court to challenge the preclearance provisions of the Voting Rights Act. The U.S. Justice Department retroactively gave preclearance for nonpartisan elections in Kinston after initially nullifying the results of a 2008 referendum.
Local businessman John Nix believes the DOJ approved the Kinston plan because it would have an easier time arguing against the Shelby County case.
“It’s a very important decision,” Nix said. “It means the end of preclearance for hundreds of jurisdictions like Kinston — 16 states. And it will allow us to make changes to our voting procedures without needing permission in advance from the federal government.”
Former state Rep. Stephen LaRoque began a petition drive in 2007 to get the referendum on the ballot after a nonpartisan election proposal failed in a City Council vote.
LaRoque thanked Terence Pell of the Center for Individual Rights, and attorneys Michael Carvin and Hashim Mooppan of the Jones Day law firm for the work they did pushing the case.
“All their hard work and that of Shelby County is what I think made this a reality,” LaRoque said.
About the Shelby County decision, he added, “I thought that there was going to be a positive result after the oral arguments before the court. I felt like it was going to be a 5-4 decision, but I felt that we had a good shot at it.”
Joining Roberts were justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas, who also wrote a concurring opinion.
Justice Ruth Bader Ginsburg wrote the dissenting opinion, joined by justices Stephen Breyer, Elena Kagan and Sonia Sotomayor.
Ginsburg took issue with Roberts’ statement about the Voting Rights Act’s success necessitating changes.
Congress, as recently as 2006, voted to reauthorize the Voting Rights Act.
“In the Court’s view, the very success of (Section) 5 of the Voting Rights Act demands its dormancy,” Ginsburg wrote. “Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated.”
She also cited eight specific examples during the last 25 years the justice contends requires the act remain as-is. North Carolina didn’t make the list, but South Carolina did.
“In 2003, after African-Americans won a majority of the seats on the school board for the first time in history, Charleston County, South Carolina, proposed an at-large voting mechanism for the board,” Ginsburg wrote. “The proposal, made without consulting any of the African-American members of the school board, was found to be an ‘exact replica’ of an earlier voting scheme that, a federal court had determined, violated the VRA.”
While declaring Section 4 unconstitutional, the Court left Section 5 — which allows for preclearance but doesn’t specify who is subject to it — intact, but unenforceable. That gives Congress the ability to rewrite Section 4 in a way that passes constitutional muster.
State Rep. George Graham, D-Lenoir, who was part of the brief filed to prevent the Kinston nonpartisan elections decision from having a greater impact on the Voting Rights Act while he was a Lenoir County Commissioner, said he expects Congress to revisit the act.
“I think there will be a rewrite at some point in time,” Graham said. “I don’t know how fast Congress will move on it, but it has been a very helpful instrument and a good tool. Over the years, it allowed for there to be good and open participation by minorities all across the country.
“It’s been a good bill and it’s paid big dividends.”
U.S. Rep. G.K. Butterfield, D-N.C., said in a statement he doesn’t place much faith in what might emerge should the House of Representatives take up the matter.
“The Republican House majority has shown its disdain for civil rights laws,” Butterfield said. “It is unreasonable to believe Congress will act in good faith and in the spirit of the Court’s decision. And so, the result of this decision will be a complete gutting of Section 5 which will embolden efforts to enact discriminatory laws and procedures.”
In the interim, state voter ID bills that have been stalled because of perceived DOJ opposition under the Voting Rights Act are getting new life.
“I guess the bottom line is we were very concerned about preclearance, so our range of acceptable IDs was broader than it may have needed to be,” State Rep. Harry Warren, R-Rowan, said to The (Greensboro) News & Record. “And so I think that they’ll revisit that aspect.”
Wes Wolfe can be reached at 252-559-1075 or Wes.Wolfe@Kinston.com. Follow him on Twitter @WolfeReports.
Breakout Box
Shelby County v. Holder
- U.S. Supreme Court ruling: The federal government cannot require specific states and jurisdictions to submit election law changes for ‘preclearance’ relying on 40-year-old data.
- Voting in the majority: Chief Justice Roberts, justices Alito, Kennedy, Scalia, Thomas
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Dissenting: Justices Ginsburg, Breyer, Kagan, Sotomayor