To justify gutting the Voting Rights Act of 1965, the conservative majority on the U.S. Supreme Court declared Tuesday that a key provision is outdated and unfairly penalizes states for sins long ago.
Tell that to voters in the 2012 presidential election who – if not for the safeguards enshrined in the act – would have been blocked from registering, had less time to cast ballots, and been forced to get specific ID cards.
Attempts to stop racial minorities from voting are not consigned to our history. Sadly, they are part of the present – but voters now have less protection after the 5-4 decision, written by Chief Justice John Roberts and supported by the court's frequent swing vote, Justice Anthony Kennedy of Sacramento.
Justice Ruth Bader Ginsburg, who has become more vocal as leader of the court's liberal wing, put it plainly in a dissent: "Voting discrimination still exists – no one doubts that. But the court today terminates the remedy that proved to be best suited to block that discrimination."
The ruling keeps Section 5, which requires places with a history of discrimination against minority voters to get approval from the U.S. Justice Department or a federal court before redrawing election districts or changing voting procedures. That pre-clearance requirement covers nine states, mostly in the South, and parts of seven others, including Kings, Monterey and most of Yuba counties in California.
The court majority, however, undermined the law by ruling unconstitutional Section 4, which sets the formula used to decide which jurisdictions must comply, saying that it violated the guarantee of equality among the states.
Unless and until Congress updates the formula, Section 5 cannot be enforced. The justices had to know how unlikely it is that lawmakers will do so quickly. This Congress is far more partisan than the one in 2006, which after hearing testimony about continuing discrimination, overwhelmingly voted to extend Section 5 for 25 years.
And what harm would there be in continuing with existing law? The court majority couldn't really cite any Tuesday, other than failing to recognize "progress." It seems to have forgotten that in 2009 it changed the law to allow local and state governments to get off the Section 5 list by proving they had not discriminated for at least 10 years. So far, 190 jurisdictions have successfully done so, including Merced County last August and the Yuba County city of Wheatland in April.
That approach makes far more sense than the blanket amnesty granted by Tuesday's ruling, which ignores efforts to suppress voting.
Since 2006, the Justice Department has blocked more than 30 proposed voting changes as discriminatory. During the 2012 campaign, Section 5 was used to successfully protect the rights of minority voters in Florida, South Carolina and Texas. As of June 10, two restrictive voting laws had passed this year and 17 more were pending in states covered by Section 5, according to the nonpartisan Brennan Center for Justice at New York University's law school. It warns that Tuesday's decision could open the floodgates to more such mischief.
It's already happening: Texas immediately moved forward with a controversial voter ID law that had been blocked by a panel of federal judges.
The Voting Rights Act is the crowning achievement of the civil rights movement, won by brave Americans – too often with their blood. There will be a poignant reminder of that sacrifice in August at the 50th anniversary of the March on Washington, where Martin Luther King Jr. gave the world his "I Have a Dream" speech.
We can only hope that somehow spurs Congress to rescue the fundamental voting rights that five justices so cavalierly eviscerated.