South Carolina and other areas with histories of discriminatory voting practices no longer need federal approval to change their voting laws — at least for now.
That oversight ended Tuesday as the U.S. Supreme Court struck down as unconstitutional part of the 1965 Voting Rights Act, ruling in the case of an Alabama county that sued the U.S. attorney general in 2010, arguing voting laws meant to prevent discrimination are outdated.
In its 5-4 decision, the court struck down a formula that determined whether states or other jurisdictions should be required to get federal approval before making changes to their voting laws -- based, in part, on their discrimination in the 1960s and ’70s.
“There is no denying ... the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions,” wrote Chief Justice John Roberts in the majority opinion. “At the same time, voting discrimination still exists; no one doubts that. The question is whether the act’s extraordinary measures, including its disparate treatment of the states, continue to satisfy constitutional requirements.”
The court did not decide the constitutionality of the remaining parts of the law, including a section that requires that states with proven histories of voter discrimination — as defined under the formula — must seek preclearance.
But “in the absence of a formula, no one is covered,” said University of South Carolina law professor Derek Black.
S.C. Attorney General Alan Wilson was among several S.C. Republican leaders declaring the ruling a victory for protecting voting rights “without requiring a different formula for states wishing to implement reasonable election reforms, such as voter-ID laws similar to South Carolina’s.”
The formula, Wilson said, unfairly singled out states for oversight, regardless of gains made since the civil rights movement.
State Sen. Chip Campsen, R-Charleston, said the court was right to strike down the formula, which operated in an “arbitrary and capricious manner because there is no rational basis of who they apply the voting acts to,” he said.
Others, however, said the ruling could lead to states mounting efforts to restrict minority voting.
“Where voters of color are on the verge of exercising their political will, often for the first time, we are finding there are efforts made to thwart” minorities’ progress, said Ryan Haygood with the NAACP’s legal defense and education fund.
State Sen. Brad Hutto, D-Orangeburg, an attorney, said that in no longer requiring South Carolina to prove changes to its voting laws are fair, the decision shifts the legal burden to citizens and advocacy groups to file potentially costly, drawn-out lawsuits to challenge changes that they think are unfair.
The court said Congress could adopt a new formula. But given the political climate in Washington, that may not happen. That “puts us back in the political crossroads, which is: Can Congress come together to agree on a new formula?” said USC’s Black. “I’m skeptical.”
Shifting burden of proof
Justice Ruth Bader Ginsburg, one of four who opposed the court’s ruling, cited South Carolina’s controversial voter-ID law as an illustration of the evidence that Congress considered before extending the preclearance requirements until 2031.
The Justice Department initially blocked the S.C. voter-ID law, citing concern it could discriminate against or unfairly burden minorities. A federal court later upheld the law after state officials agreed to a broad interpretation of a provision that provides an exception to the requirement that voters have an ID. That exception allows voters to cast ballots, even without an ID, if they provide a reason for not having one.
Unless Congress adopts a new formula, all changes in S.C. voting — from the locations of voting precincts and redistricting plans, to changes like the voter-ID law — will no longer need approval from the Justice Department or a federal court before taking effect.
Supporters of the court’s decision said the law already provides a way for people to challenge the legality of voting laws: federal courtrooms. “This is a victory for all voters as all states can now act equally without some having to ask for permission or being required to jump through the extraordinary hoops demanded by federal bureaucracy,” Attorney General Wilson said.
But what Wilson called “extraordinary hoops,” supporters of preclearance see as an efficient way of protecting fairness and addressing changes in the state’s voting rules before they take effect.
“I would hope that as Congress goes back and looks at this, they’ll recognize the value of the preclearance process and maybe expand it” to include coverage of all states, Sen. Hutto said.
In the court of Congress
U.S. Rep. Jim Clyburn, D-S.C., called the ruling a “disappointing” reversal of a law that Congress put in place after considering thousands of pages of evidence of voting rights violations and overwhelmingly agreeing to place some states under federal oversight.
That evidence was “clear enough for those who got elected” — lawmakers — “but not clear enough for those who were appointed” — the Supreme Court justices, Clyburn said.
Clyburn said there may be support in Congress for defining a new formula, given the overwhelming support behind reauthorizing the Voting Rights Act in 2006.
As for possible challenges facing South Carolina, Clyburn said, “I don’t worry about it at all. I would hope that the state Legislature would do the right thing.”