1600 Pennsylvania Avenue, Capitol and First Sts., 1 First St. NE. Those are the addresses of the White House, the U.S. Capitol, and the Supreme Court, respectively. If you’ve forgotten we still have three branches of government in Washington, you’re forgiven. Given the daily antics of the Executive Branch, it’s easy to overlook what’s going on near the other end of Pennsylvania Avenue. So let’s take a little tour down Memory Lane.
In 1965 Congress enacted the Voting Rights Act to address racial discrimination in our electoral process. In Section 5 of the Act, there exists a “preclearance requirement” that requires certain states to obtain a “determination” by the U.S. Attorney General or a panel of the U.S. District Court of D.C. prior to enforcing any changes in their voting laws, that those laws do not "deny or abridge the right to vote on account of race, color, or membership in a language minority group". Section 4(b) of the Act addresses the “coverage formula” which essentially determines which states are subject to “preclearance”. In the original 1965 Act, those states and jurisdictions included the whole of Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia; and some subdivisions (usually counties) in Arizona, Hawaii, Idaho, and North Carolina.
Take a leap forward in time to 2013. In Shelby County (Alabama) v. Holder, the constitutionality of Sections 5 and 4(b) was challenged. On June 25, 2013 the Supreme Court ruled in a 5 to 4 vote that Section 4(b) was unconstitutional, because data used in the “coverage formula” was over 40 years old. Section 5 was not struck down but is de facto null and void, because it can’t be enforced until Congress enacts a new coverage formula. In a dissenting opinion, Justice Ruth Bader Ginsberg wrote that discrimination in voting had indeed decreased since 1965 but mostly due to the Voting Rights Act itself. Bader noted that "[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet”. However, while acknowledging in a majority opinion that the Act was successful "at redressing racial discrimination and integrating the voting process”, Chief Justice John Roberts wrote, “no one can fairly say that it shows anything approaching the 'pervasive,' 'flagrant,' 'widespread,' and 'rampant' discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the nation.” This ruling led many critics to wonder if Justice Roberts believed racism was a thing of the past.
Then 2016 happened. Enough said except to point out that among other things, many accepted norms and traditions were turned upside down. Could this u-turn apply to Justice Roberts as well? Writing for the Brennan Center for Justice, associate law professor Ciara Torres-Spelliscy muses precisely on that question, whether the 2016 election changed Justice Roberts’ tune. Torres-Spelliscy focuses specifically on a 6-2 ruling in February in the case of Buck v. Davis, in which the Supreme Court held that “Duane Buck received ineffective assistance of counsel by allowing this racially stereotyped evidence to enter the case”.
Click here to read Professor Torres-Spelliscy's complete article.
posted by Amy Levengood