Linzer – Voting Rights

June 26, 2013 – The U.S. Supreme Court Tuesday voided a key provision of the 1965 Voting Rights Act until Congress develops a better formula to determine which states with a history of racial discrimination are required to obtain federal approval before changing voting laws. The ruling affects all or parts of 15 states, including Texas. In a 5-4 vote on the decision written by Chief Justice John G. Roberts Jr., the court found the provision unconstitutional because the decades-old formula failed to take into account developments in race relations and societal changes over the years. The challenge was brought by an Alabama county which acknowledged that the pre-clearance provision was needed when enacted nearly 50 years ago, but questioned whether there was a point at which it should end.  University of Houston Law Center Professor Peter Linzer, a constitutional scholar, explains the ruling and what it means.

Q.)  Can you provide a little background and explain the court's ruling?

                The Fifteenth Amendment, passed in 1870, provides that "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," and gives Congress the "power to enforce this article by appropriate legislation."  In 1965, Congress passed the Voting Rights Act, which provided in its Section 4 that various states that had a wide disparity between black and general voting registration had to get preclearance from Washington before they could change any qualifications to vote.  This was extended in later years, but only a minority of states and parts of states, mostly in the deep south, and mostly with notorious histories of racial discrimination, were covered.   The covered locations had the burden of proof if they opposed the refusal of the attorney general to preclear their changes.  Until either the U. S. attorney general or the district court for the District of Columbia cleared the changes, the changes did not take effect.

The Supreme Court on Tuesday held that in Shelby County, Alabama v. Holder, Congress' coverage formula no longer could be used, given changes in racial attitudes in the covered locations.  The court held that the formula does not have a rational basis, and that the court, and not Congress, is the proper authority to decide what criteria should be applied to remedies with respect to voting rights.  As a result, in all changes in voting criteria the only remedy from now on, or until Congress drafts a new formula satisfactory to the court, will be a full law suit, with the government or the person opposing a change in voting laws having the burden of proof.

Q.)  What is the immediate effect on Texas and other states covered by provisions of the Voting Rights Act?

                Changes in voting district lines, changes in polling locations, and things like voter ID laws will no longer be subject to a veto by the attorney general or by the district court for the District of Columbia, but will have to be challenged in a lawsuit brought either by the federal government or by people claiming to be discriminated against.  And the supposed discriminatory laws will remain in effect until enjoined by a court, presumably after considerable litigation, which will be time-consuming and expensive.  Because of this, and because most minority voters vote Democratic, we can expect more legislation changing voting requirements in ways that minority representatives claim will weaken minority voting rights.  Just as we have seen significant changes in the House of Representatives because of the court's allowing redistricting between census decades and its refusal to examine the redistricting closely, we can expect strong arguments that minority rights are being systematically restricted.

Q.)  What does today's decision and yesterday's affirmative action order say about this court?

                It has for some years showed hostility to Congress' enacting of civil rights laws under its enforcement powers under the enforcement sections of the 13th, 14th, and 15th Amendments. This opinion shows that it will not show deference to factual determinations made by Congress under its enforcement powers.

To schedule a media interview with Professor Linzer, contact Carrie Criado, Executive Director of Communications and Marketing, 713-743-2184, cacriado@central.uh.edu; or John T. Kling, Communications Manager, 713-743-8298, jtkling@central.uh.edu.

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