UPDATES & ANALYSIS

Supreme Court Strikes Down Key Voting Rights Act Provision: What It Means For Iowa

by Colin Smith | June 25, 2013

By Colin Smith

Today, in a landmark ruling, the U.S. Supreme Court struck down a principal section of the Voting Rights Act of 1965.  The case, Shelby County v. Holder, held that Section 4 of the Act was unconstitutional because it improperly subjected some states and jurisdictions to more rigorous federal oversight of their election laws than others.

The Voting Rights Act was originally passed and signed into law in 1965.  It was designed to address entrenched racial discrimination in voting.  At the time, certain states and jurisdictions across the country — most of them in the Southern United States — had long and well-documented histories of enacting certain election and voting laws that served to erect obstacles to minority voting.  To rectify this problem, Congress put into place the Voting Rights Act, which not only banned certain discriminatory voting practices nationwide but also targeted certain “bad offender” states for additional oversight.  These states became known as “covered jurisdictions,” and the formula for determining what states would fall into that category were set forth in Section 4 of the Act.

The Voting Rights Act (VRA) was originally meant to be a temporary statute, one that would be in place for five years (with the possibility of renewal).  The Act was renewed in 1975, 1982, and in 2006.  The law was challenged on multiple occasions, but was always upheld.  The most frequent challenge to the law was that it set up a framework where some states were being treated differently than others.  Opponents of the law maintained that this “unequal treatment” violated the constitutional principle of “equal sovereignty” among the states.  Or, in other words, each state should be treated as co-equal to every other state in the Union, and by subjecting some “covered jurisdiction” states to strenuous federal oversight of their elections, the very bedrock principle of state equality was being violated by the VRA.  This argument was never entirely accepted by the High Court, but the underlying theory behind it persisted in legal discussions over the Act.

The legal issue at stake in Shelby County was an extension of this long-asserted argument by opponents of the VRA.  The Shelby County petitioners conceded that the federal oversight structure put into place to police the covered jurisdictions was warranted at the time of the VRA’s enactment in 1965.  After all, the pervasive discrimination that occurred in those jurisdictions at the time was, and is, beyond question.  However, the petitioners argued that dramatic cultural changes — such as racial voter registration nearing parity, more minorities holding elected office than ever, and the election of the nation’s first African-American president — evidence the fact that the underlying evils that the VRA was meant to combat had significantly subsided since 1965.  So much so, they argued, that the unequal treatment of covered versus non-covered jurisdictions was no longer constitutionally acceptable.

The Supreme Court agreed.  The Court was especially moved to this conclusion by the fact that when Congress renewed the VRA in 2006, it did so on the basis of minority voter discrimination data pulled from the time period when the Act was originally passed 40 years earlier, not from the time of the Act’s reauthorization in 2006.  This, the Court concluded, meant that Congress had renewed the Act without ensuring that the more dramatic aspects of its regulatory framework were actually tailored to modern conditions, as opposed to conditions that had drastically changed since the original enactment of the law.  In short, the Supreme Court concluded that “the nation is no longer divided” along the lines of discrimination that existed in 1965, but the “Voting Rights Act continue[d] to treat it as if it were.”  This, the Court said, was unconstitutional.

So what does this mean for Iowa?  It’s hard to say.  The impact of the Shelby County case here will not be direct because Iowa was never one of the “covered jurisdictions” specified in the Act.  But the case may have a more subtle and indirect potential impact on Iowa in the future.  The VRA originally grouped states as covered jurisdictions if the states in question had used a “test or device” to further minority voter discrimination prior to 1965.  States that fell into this category were states that had used literacy tests, poll taxes, and the like.  In the 1975 reauthorization of the VRA, the law was amended to bring certain states into the covered jurisdictions category that had used English-only voting materials in places where over 5% of the voting age population spoke a language other than English.  As a result of this amendment, several new states were swept into the VRA’s reach that had originally not been, such as Alaska.  At the time, Iowa had employed mostly English-only voting materials, but it did not possess a segment of its voting age population that spoke a primary language other than English.  As a result, Iowa never became a covered jurisdiction.

Fast-forward to the present day. According to the 2010 census, about 7% of Iowans over age 5 speak a language other than English at home.  It is not hard to imagine that there may be some enclave in the state — such as a township or a city — that actually has nearly 5% of its voting age population as non-English speakers.  A city like Postville, Iowa comes to mind.  Iowa still has a policy of providing voting materials primarily in all English, although voters can get help if they can’t read the ballot.  (An Iowa lawsuit in 2008 was waged over a similar issue).  Here’s what that means: If Congress decides to take action to resurrect the VRA in the face of the Shelby County decision, and Congress decides to maintain the 5% non-English speaker rule to designate new covered jurisdictions, and Congress collects data indicating that some political subdivisions in Iowa fit that description, then parts of Iowa might very well be subject to the next generation of the Voting Rights Act.  Although this appears to be a remote possibility given the current political environment, it is something worth noting.

In the closing portion of his majority opinion today, Chief Justice John Roberts remarked that “[o]ur country has changed” since the VRA was first into place in 1965.  Considering the possibility that Iowa might be considered a potential “covered jurisdiction” in 2013, but not in 1965, seems to make Chief Justice Roberts’ statements about how much America has changed interestingly true, at least here in Iowa.

Tags: Election Law, US Supreme Court