By Ashley Lopez
Florida Center for Investigative Reporting
In a 5-4 ruling Tuesday, the U.S. Supreme Court overturned a key provision of the 1965 Voting Rights Act that requires some states and individual counties — including five in Florida — to have their respective voting laws approved by the federal government.
Section 4, the part of the civil rights-era law that the court overturned, put in place a formula that determines which parts of the country need to have federal oversight due to discrimination in its past.
Here is the now-defunct formula from the U.S. Department of Justice:
As enacted in 1965, the first element in the formula was whether, on November 1, 1964, the state or a political subdivision of the state maintained a “test or device” restricting the opportunity to register and vote. The Act’s definition of a “test or device” included such requirements as the applicant being able to pass a literacy test, establish that he or she had good moral character, or have another registered voter vouch for his or her qualifications.
The second element of the formula would be satisfied if the Director of the Census determined that less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964. This resulted in the following states becoming, in their entirety, “covered jurisdictions”: Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. In addition, certain political subdivisions (usually counties) in four other states (Arizona, Hawaii, Idaho, and North Carolina) were covered. In fully covered states, the state itself and all political subdivisions of the state are subject to the special provisions. In “partially covered” states, the special provisions applied only to the identified counties. Voting changes adopted by or to be implemented in covered political subdivisions, including changes applicable to the state as a whole, are subject to review under Section 5.
Five counties in Florida fell under this section’s guidelines: Collier, Hardee, Hendry, Hillsborough and Monroe. That is, until now.
The majority held that the coverage formula in Section 4 of the Voting Rights Act, originally passed in 1965 and most recently updated by Congress in 1975, was unconstitutional. The section determines which states must receive preclearance from the Justice Department or a federal court in Washington before they make minor changes to voting procedures, like relocating a polling place, or major ones, like redrawing electoral districts.
The current coverage scheme, Chief Justice Roberts wrote, is “based on 40-year-old facts having no relationship to the present day.”
“Congress — if it is to divide the states — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions,” he wrote. “It cannot simply rely on the past.”
The decision did not strike down Section 5, which sets out the preclearance requirement. But without Section 4, which determines which states are covered, Section 5 is without significance — unless Congress chooses to pass a new bill for determining which states would be covered.
However, considering how difficult it has been to get basic things accomplished in Congress as of late, the chance of lawmakers drafting new rules anytime soon is slim.
This most likely means that civil rights groups and individuals will have to fight voting laws they think are unconstitutional by taking officials to court.
Section 2 of the Voting Rights Act “prohibits state and local officials from adopting or maintaining voting laws or procedures that purposefully discriminate on the basis of race, color, or membership in a language minority group,” according to the Justice Department.
In 2011, the Republican-led Florida Legislature passed a controversial voting law that made it harder for third-party groups to register voters and it cut early voting days, among other things.
The early voting days were extended in the five counties that were under Section 5 and groups were able to fight voter registration provisions in court. However, a court halted that part of the Florida law after groups had already lost a significant amount of time during which they could have been registering voters.
While Section 4 and 5 of the VRA are meant to stop discrimination before it begins, Section 2 can only stop a discriminatory law once damage has occurred and that damage can be shown in court.
Until Congress acts, the Times reported Tuesday that the decision “will have immediate practical consequences”:
Changes in voting procedures that had required advance federal approval, including voter identification laws and restrictions on early voting, will now be subject only to after-the-fact litigation.
“With today’s decision,” said Greg Abbott, Texas’ attorney general, “the state’s voter ID law will take effect immediately. Redistricting maps passed by the Legislature may also take effect without approval from the federal government.”
Over the years, many states have fought the federal government over Section 5 and have called the provision “unconstitutional,” including Florida.