The Court Acts on Voting Rights; Our Comment

The Supreme Court struck down Section 4 of the Voting Rights Act this week, eliminating protections against racial discrimination in our voting process. The ability for each American to cast a ballot in our democracy without fear of discrimination – regardless of race, age, gender – is fundamental to the strength of our democracy.

This ruling, of course, has already been ingested by the 24-hour cable news cycle.  But I want to offer a rare comment here, as the Foundation’s Secretary & General Counsel, because what we’re doing can help mitigate an unfortunate Supreme Court ruling and provide data where data can help to fortify efforts to re-engage Congress.

In short, while it can be argued that we had to see this coming, the good news is that we’re developing tools that officials and the public can use to monitor the borders of racial disenfranchisement.

1st, to be fair we probably should have seen this coming.  After all, a call to recalculate the coverage formula in the NVRA has been heard for some time now.

The court’s opinion said that it did not strike down the act of Congress “lightly,” and noted it “took care to avoid ruling on the constitutionality of the Voting Rights Act” in a separate case back in 2009. “Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare [Section 4] unconstitutional.”

The majority believes that the South has made great progress in enforcing the NVRA during the last 50 years, including the states affected by Section 4.  That may be true to a point, but Congress held hearings on these issues in 2006 and overwhelmingly voted to leave the NVRA intact as is (or was until this week.)

So the coverage formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.  In his bench statement, Roberts said that Congress had extended a 40-year-old coverage formula based on “obsolete statistics and that the coverage formula “violates the constitution.” Congress, the court ruled, “may draft another formula based on current conditions.”

This effectively sends it back to Congress to restructure Section 4.  Given the current logjam in reaching any consensus within the House of Representatives, it seems unlikely that draft formula, based upon current statistics, will be considered any time soon.  And analysts believe that this Congress’s actions (or lack thereof) will likely result in the death of Section 5 as well (which has not yet been touched by the Court).  While we no longer live in an era of Jim Crow laws, we have witnessed first hand that discrimination continues.  The Court’s ruling today appears to remove the exact law that protects our citizens.  Thus I believe Congress must be pressed into acting.  Incidentally, if the reader would like some excellent background on this and a solid recap of what happened just 7 years ago in when the VRA was reauthorized during a completely Republican controlled government, see Molly Ball’s article in the Atlantic online published today.

2nd, there is some good news we can offer.  The TrustTheVote Project is building the tools now — analytic tools to monitor and track the performance of elections.  These tools will analyze and detail several aspects of the processes for voter registration and balloting.  We believe these tools will provide a detection service to identify when and where the conduct the Voting Rights Act sought to prevent, breaks out again.

While our efforts will not be as strong as Congress fortifying the NVRA to restore those protections of Section 4, our open source tools can help elections officials detect if and/or when such discrimination and disenfranchisement occurs.

However, we need more funding to expand and extend the core capabilities of these tools, currently slated for deployment in the State of VA, then elsewhere.  Perhaps the results of the Supreme Court review of Shelby County v. Holder today will catalyze both a call to Congress and supporting our work here — now more than ever.

For our readers, I hope you will consider helping this effort, because regardless of Congressional actions, this work is fundamental to our democracy.  Ours is not another effort to influence Congress, rather an effort to actually build better election administration tools to cast transparency on process and help root out trouble and improve integrity.  With all due respect to my colleagues working on policy development, there is noting like developing real apps.  So, please consider supporting us, and by any and all means, let your Congressional representatives know that it is imperative to revitalize the coverage formula in Section 4 the NVRA.

Christine M. Santoro
Secretary & General Counsel