Jessica Pickens of Chicago and fellow civil rights advocates gather outside… (Pete Marovich / McClatchy-Tribune )
WASHINGTON — A sharply divided Supreme Court has struck down a key part of the historic Voting Rights Act of 1965, freeing the Southern states from federal oversight of their election laws and setting off a fierce reaction from civil rights advocates and Democratic leaders.
The court's conservative majority moved boldly Tuesday to rein in a law revered by civil rights groups that is credited with transforming the South by ensuring blacks could register and vote. In doing so, the court eliminated a tool that the Justice Department used hundreds of times to prevent cities, counties and states from adopting allegedly discriminatory voting rules.
The court left open the possibility that Congress could fix the law, but the partisan gridlock that has dominated the legislative branch in recent years appears to make that unlikely.
Under the provision that the court struck down, nine states and the city councils and local governments within them were required to obtain advance approval from Washington before changing their rules on voting and elections, a process known as "pre-clearance." The goal was to end the discriminatory schemes that for a century after the Civil War had prevented blacks from registering and voting. More recently, the law has been used to ensure that black and Latino votes translate into electoral power.
Since it was first adopted in 1965, the law has been repeatedly extended by Congress, most recently by a nearly unanimous vote in a Republican-controlled House and Senate in 2006.
Speaking for a 5-4 majority, Chief Justice John G. Roberts Jr. pronounced the pre-clearance process a "resounding success" — and then declared it unconstitutional.
The problem, Roberts said, is the formula that Congress wrote for deciding which jurisdictions must seek pre-clearance. That formula has not been updated since the 1970s, and that, he said, is unacceptable.
"African American turnout has come to exceed white voter turn out in five of the six states originally covered" by the 1965 law, and it is nearly equal in the remaining original states, he said. The Constitution rests on the "fundamental principle of equal sovereignty among the states," Roberts said, and if Congress is to single out some of them for special oversight, it must do so "in light of current conditions. It cannot rely simply on the past."
The decision left the pre-clearance requirement intact, but empty of significance because it cannot be applied to any jurisdictions unless Congress updates the formula.
The decision is likely to be felt in small towns and cities across the South, legal experts said. Statewide changes in election laws usually draw notice — and sometimes, legal challenges — but similar changes on a local level can go unnoticed and uncontested.
Writing for the court's four liberal members in dissent, Justice Ruth Bader Ginsburg denounced the majority for "hubris." The 15th Amendment, which gave black people the right to vote after the Civil War, gave Congress the power to enforce those rights, Ginsburg wrote, and the court was wrong to substitute its judgment.
Moreover, the improvements that Roberts cited had happened precisely because the law had worked, she said.
Civil rights leaders said they were surprised and disappointed.
Rep. John Lewis (D-Ga.), a hero of the civil rights movement, said the Supreme Court "had stuck a dagger in the heart of the Voting Rights Act of 1965. They're saying, in effect, that history cannot repeat itself. But I say, come and walk in my shoes." Lewis was badly beaten by Alabama police in the "bloody Sunday" march across a bridge in Selma, Ala., an incident that helped spur Congress to adopt the Voting Rights Act.
This "is an act of extraordinary judicial overreach," said Sherrilyn Ifill, president of the NAACP Legal Defense Fund. "By second-guessing Congress' judgment … the court has left millions of minority voters without the mechanism that has allowed them to stop discrimination before it occurs."
She said that all of the provisions of the Voting Rights Act were still needed today. In the last 25 years, it has "stopped over 1,000 proposed discriminatory voting changes from taking effect," Ifill said. And last year, it put on hold new laws in Florida, Texas and South Carolina that would have limited voting hours or added photo identification requirements, she said.
The states covered under the Voting Rights Act were Alabama, Georgia, Mississippi, Louisiana, South Carolina, Texas, Virginia, Arizona and Alaska. Also included were five counties in Florida, three boroughs in New York City and three counties in Central and Northern California — Monterey, Kings and Yuba.
At first, the covered jurisdictions were those that used literacy tests or poll taxes. In the 1970s, the formula was expanded to include jurisdictions where less than 50% of the eligible residents voted.