When the U.S. Supreme Court voided a key provision in the 1965 Voting Rights Act, the majority decision stated that the voter protection benchmarks set between 1965 and 1975 no longer apply, thanks to racial progress. Yet that point disregards recent history and current events.
The court's 5-4 decision in Shelby County vs. Holder scrapped the decades-old formula that kept nine states and jurisdictions in six other states, including five Florida counties, subject to federal review before new voting laws could be instituted. Those entities all have a history of racial discrimination, but federal oversight -- known as preclearance -- can no longer be applied without a formula.
The majority decision under Chief Justice John Roberts stated Congress must come up with a new formula, an all but impossible task given the sharp political polarization in Washington.
Just last year, the preclearance process voided Florida's reduction in early voting days from 14 to eight but only in the five counties -- Hillsborough, Hardee, Collier, Hendry and Monroe. The three-judge panel ruled that the shorter period was "analogous to closing polling places in disproportionately African-American precincts."
The compressed time span for early voting did apply to the state's other 62 counties, with the predictable long lines of voters waiting outside polling places. Manatee County offered only one site for early voting, and the heat and long waits frustrated many citizens.
Under heavy criticism, the state rewrote the law to provide elections supervisors the discretion to set early voting between eight and 14 days and up to 12 hours a day, not the rigid eight as before. But that discretionary power allows officials to only schedule the minimum number of days and hours, which could reduce voter participation.
In her scathing dissent, Justice Ruth Bader Ginsburg brought up compelling evidence of the necessity to maintain the preclearance formula -- citing a slew of specific cases and noting: "All told, between 1982 and 2006, DOJ objections blocked over 700 voting changes based on a determination that the changes were discriminatory. ... Congress found ... that the changes blocked by preclearance were 'calculated decisions to keep minority voters from fully participating in the political process.' "
Furthermore, "Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court's opinion today," she wrote. "The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story."
Until Congress acts and creates a new formula, the Justice Department and citizens are left to pursue legal challenges in the courts -- after violations occur. Ginsburg cited the relative futility of that course of action, noting that before passage of Civil Rights Acts from 1957 to 1964, case-by-case litigation was inadequate.
With voting lawsuits onerous and time-consuming to prepare, and litigation exceedingly slow with the delays afforded voting officials, Congress answered with the Voting Rights Act.
Chief Justice Roberts and his conservative majority have effectively returned the United States to the past when threats to democracy flourished. Congress should forge ahead to rectify this injustice.