- The Washington Times - Tuesday, June 25, 2013

The Supreme Court ruled Tuesday that states no longer can be judged by voting discrimination that went on decades ago, a decision that argues the country has fundamentally changed since the racially motivated laws of the civil rights era.

In a 5-4 ruling, the justices said the Voting Rights Act’s requirement that mainly Southern states must undergo special scrutiny before changing their voting laws is based on a 40-year-old formula that is no longer relevant to changing racial circumstances.

“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. It cannot rely simply on the past,” Chief Justice John G. Roberts Jr. wrote for the majority, which was comprised of the court’s conservative-leaning justices.

The four liberal-leaning justices dissented, arguing that racial discrimination in voting remains a real threat. The majority didn’t disagree with that, but the core of Chief Justice Roberts’ opinion was that discrimination today looks markedly different from what it did decades ago, so the law must be changed to reflect that.

The Shelby County v. Holder ruling sparked an immediate debate about the status of race and discrimination in modern America.

“There’s just no question that the court is slowly letting go of this legacy of race in America, and is pushing it aside,” said Ward Connerly, founder of the American Civil Rights Institute. “I think the resistance you’re seeing from the NAACP, ACLU and a lot of others to the Shelby case is a recognition that the ship is moving, and it’s moving from where it was with regard to race 50 years ago — it’s moving in the direction of a post-racial era.”

SEE ALSO: Obama: Supreme Court ruling on voting rights a ‘setback’

The ruling leaves in place many of the protections of the 1965 law, such as banning literacy tests. It even said Congress can require some states or localities to submit their voting changes for special scrutiny.

But the court’s majority said Congress cannot use the same formula from four decades ago, which judged states based on black voter registration and turnout.

“If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between states in such a fundamental way based on 40-year-old data, when today’s statistics tell an entirely different story,” Chief Justice Roberts wrote.

He invited Congress to try to rewrite the formula — and President Obama and congressional Democrats said they would try to do just that. But Republicans didn’t signal an eagerness to accept the court’s challenge.

The justices’ decision marks a major break after decades in which the court upheld the Voting Rights Act, which was passed at the height of the civil rights movement and was designed to combat literacy tests, inaccessible polling places and other barriers to voting.

J. Gerald Hebert, a voting rights lawyer, said the ruling marks the first time since the 1880s that the Supreme Court found Congress had overstepped itself under the 15th Amendment, which guarantees that the right to vote cannot be denied because of race, and grants the legislature broad powers to ensure those rights are protected.

SEE ALSO: Court sends affirmative action case back to lower courts

“I think today’s decision is an extreme act of judicial activism. Just four years ago, this precise issue was before the court and there were five justices at that time who did not declare the Voting Rights Act or the coverage provisions unconstitutional,” he said. “What has changed in four years?”

Gary May, a history professor at the University of Delaware and author of a new book, “Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy,” said the court’s decision amounted to a step backward at a time when barriers had shifted from literacy tests to more subtle roadblocks such as voter ID laws or eliminating Sunday early voting.

Mr. May said congressional Republicans must decide whether to update the formula or let it die, which would doom much of the Voting Rights Act. He said the court’s decision could spur a renewed civil rights movement.

“This thing is not going to go away. It may be only a temporary setback,” he said. “I think you’re going to see a reorganization of the civil rights movement, you’ll see demonstration again, and with the country evolving the way it is, are Republicans going to commit suicide?”

The professor said Republicans had a long history of backing the Voting Rights Act — indeed, it was written in the office of Sen. Everett Dirksen, the Republican leader, and was renewed repeatedly under Republican presidents.

The most recent renewal was in 2006, when both houses of Congress and the White House were controlled by Republicans.

In her dissent, joined by the court’s other liberal-leaning justices, Justice Ruth Bader Ginsburg said Congress spent years examining discrimination before that 2006 renewal and decided the formula was still relevant.

“Given a record replete with examples of denial or abridgment of a paramount federal right, the court should have left the matter where it belongs: in Congress’ bailiwick,” Justice Ginsburg wrote.

But Horace Cooper, co-chairman of Project 21, a network of conservative black leaders, said the court’s hand was forced by Mr. Obama and Attorney General Eric H. Holder Jr., who he said turned the anti-discrimination provisions into a cudgel to use against conservatives in Arizona, where the department went after a law designed to prevent illegal immigrants from voting, or in states that enacted voter ID laws after the Supreme Court said they were legal.

“I would say to the NAACP and the Urban League, if they are upset with today’s ruling they need to look to Eric Holder. He is the one who’s abusing the law,” Mr. Cooper said. “If they had singled out jurisdictions where there were actual crimes occurring, no one would have sued. These are cases where those things weren’t happening and the Justice Department said we’ve got the authority and you have to do what we say.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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