Questions about the SCOTUS VRA decision...

[usernamenumber]

I've been reading a lot of people talking about yesterday's SCOTUS decision "gutting" the Voting Rights Act, but now that I'm taking some time to read about it, it looks like the decision was a lot more nuanced (and perhaps less dire?) than that. Am I missing something? Here's what I've gathered so far...

Section 5 of the act sets standards for pre-approval that have to be met before state voting laws can be changed.

BUT...

Those rules only apply to "covered districts", which are defined by a formula in section 4 of the act. That formula is based on the voting rights record of the district in question... from the 1960s and (after later amendments) 1970s. Only. Nothing past that.

From the SCOTUS decision:
"""
The coverage formula and preclearance requirement were initially
set to expire after five years, but the Act has been reauthorized several times. In 2006, the Act was reauthorized for an additional 25
years, but the coverage formula was not changed. Coverage still
turned on whether a jurisdiction had a voting test in the 1960s or
1970s, and had low voter registration or turnout at that time.
"""

The court's holding says this:
"""
Section 4 of the Voting Rights Act is unconstitutional; its formula
can no longer be used as a basis for subjecting jurisdictions to preclearance.
"""

...which, I've gotta say, kind of makes sense. Instead of rubber-stamping section 4 over and over, shouldn't Congress have been, you know, applying the VRA in *all* places that are exhibiting suspect behavior, not just those that did so 30+ years ago (or, ideally, uniformly across the board)?

The interim between the SCOTUS decision and when Congress can implement a more reasonable alternative to Section 4 is a scary thing to think about, but...

1) In the long-(or even mid, depending on how quickly Congress can act)-run, it's a solvable problem... right?

2) Is SCOTUS really the right place for blame? I'm not a lawyer, and I haven't thoroughly researched this, but it's looking to me like Congress acted stupidly and irresponsibly by not updating section 4 for decades, and now it's blown up in their faces.

So, people who have been posting about this. What am I missing? (<-- sincere question, in case the tone isn't clear)

Further reading...
SCOTUS decision:
http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf

"tl;dr" summary of the issue from Slate:
http://www.slate.com/blogs/weigel/2013/06/25/scotus_voting_rights_act_section_4_what_it_means_for_southern_politics.html

Two articles from Colorlines, one from before the decision and one from after, which together look like a pretty good analysis, and which have influenced my thinking about the issue:
http://colorlines.com/archives/2012/05/time_to_stick_a_fork_in_the_voting_rights_act.html
http://colorlines.com/archives/2013/06/supreme_court_purges_civil_rights_best_weapon_from_voting_rights_act.html

Wikipedia article with summary of the VRA, and a link to the law's text in the sidebar:
https://en.wikipedia.org/wiki/Voting_Rights_Act


Crossposted to Facebook, where discussion has ensued.

Comments

[laurion]

But note that the VRA has always had methods by which covered jurisdictions can get themselves off the covered list. Essentially all they had to do was prove they had not been discriminating for a number of years and weren't at risk for discriminating.

And they couldn't do that, or at least, didn't do that.

Its a little like being told you can't have the keys to mom and dad's car again without asking first until you can prove that you are a safe responsible driver who isn't going to cause the insurance rates to go up again. And instead of doing that you get the local court to declare that it's been a little while now, so there's no rationale anymore. That time alone is enough to make you a better driver.

[laurion]

But that said, with the recent trend towards disenfranchisement everywhere, I'dve liked to see it applied universally instead of blocked universally as well. But little chance of congress making it so, and outside of the scope of the courts to do so.

[lowellboyslash.livejournal.com]

My take-away is that this is a practicum: that is, the problem with this decision is that it is very likely to result in less protection for voters' rights rather than more. In essence, the Supreme Court has booted this back to Congress, yes. But in doing so, (1) they have withdrawn whatever protection they held over the Act as it stands; and (2) they have opened the door to whatever kinds of malarkey Congress can come up with. This is not a Congress that I have confidence in, especially in light of the GOP's recent gerrymandering.

Also, not to put too fine a point on it, look who the justices are who lined up to strike this down: Roberts, Scalia, Kennedy, Thomas, Alito. Those are historically very conservative justices, and they're no fools. They know what will happen, I think, when they punt this back to the legislative branch. And the dissenting opinion reflects exactly that fear:

Ginsburg writes, "The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective.... The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclear­ance is no longer needed." [Link goes to a HuffPo article.]

Lastly, as an historian, I can't help but see this in light of the other conservative implications of this stance. Fundamentally, even if you don't believe that the majority opinion consists of throwing hands in the air and declaring racism over, it's hard not to see this as a case of revoking centralized control and minimum standards in favor of reverting to a more disparate, case-by-case or even state-by-state lawmaking process. That kind of lawmaking process is what got us into trouble back in the 1860s, when that kind of States' Rights conservativism was really a smokescreen for oppression. I'm not saying that this ruling necessarily intends a return to the Jim Crow laws, but it certainly reopens that very bloody door, and it signals a return to a type of government that has, historically, done our nation few favors.