THE BLOG
02/19/2014 09:57 am ET Updated Apr 19, 2014

Fighting Racism in the 21st Century Requires a Modern Formula

Earlier this year, when the Supreme Court ruled that Section 4 of the Voting Rights Act was unconstitutional, much of this country responded with disappointment. The Voting Rights Act, originally passed in 1965, represented one of the most substantial pieces of legislation in American history. On both sides of the political spectrum, it is accredited with having played a large part in putting an end to the rampant discrimination that plagued the South. The sentimental and symbolic value of the VRA, however, was not enough to justify its continued application. The Supreme Court made the correct constitutional decision in overturning section 4. Furthermore, it seems increasingly likely that Congress will soon pass an amended Voting Rights Act that is uniquely tailored to combat 21st century racism. America's progressives need to look beyond labels and realize that change is good. Fighting modern racism requires a toolkit that suits today's needs - not yesterday's.

A few months ago, the Supreme Court ruled the section 4 of the Voting Rights Act unconstitutional in the case of Shelby County vs. Holder finding that its coverage formula unfairly discriminated against certain states. Section 4 singled out 9 specific states for strict preclearance requirements (these states had to receive federal permission before passing election changes) based on levels of discrimination in 1965. In 2013, "current burdens" were therefore not justified to "current needs." Unequal treatment of the states based on a decades-old formula violated the principal of equal sovereignty of the states. Justice Roberts wrote that "The Fifteenth Amendment is not designed to punish for the past; its purpose is to ensure a better future."

Almost immediately, the court was lambasted for its decision. Former civil rights hero and Congressman John Lewis (D-GA) was quoted saying "These men that voted to strip the Voting Rights Act of its power, they never stood in unmovable lines, they never had to pass a so-called literacy test." Like Lewis, most critics of the court assumed a tone of self-righteous indignation. How could the court strike down a law as historic as the Voting Rights Act, they cried. Yet few chose to engage the Supreme Court in a legitimate debate regarding the merits of its decision.

Those who read the court's decision found that it was strongly grounded in logic and fact. Times had indeed changed. In 1965, "flagrant," "rampant" and "pervasive" discrimination was uniquely concentrated in southern states, where 44% of African Americans voted, compared with 72% in the West, Midwest and Northeast. In 2013, however, African American voter turnout in covered jurisdictions exceeded turnout in the rest of the country, as did the number of African American representatives as a proportion of the population. U.S. Solicitor General Donald Verrilli agreed that racism is not more prevalent in the South than in the North. Absent uniquely "local evils," Congress could not impose stricter burdens on covered states solely on the basis of historical discrimination.

Justice Ginsberg, unlike her supporters in Congress, attempted to justify the Voting Rights Act in her dissent. She cherry-picked a study organized by Ellen D. Katz, a former civil rights lawyer for the Department of Justice official who is now a professor at the University of Michigan. Katz found 56% of litigation for voter suppression to be concentrated in Section 4 states. Even this study, however, was problematic for a number of reasons. First, it relied on a sample of only 322 total lawsuits, 24 of which actually ended in convictions. Second, it only looked to cases that ended in court (not in a pre-trial settlement) and therefore unintentionally built-in a selection bias for states who were less willing to settle. Presumably, States who had already had their election laws pre-cleared by the federal government would be less likely to assume responsibility for alleged discrimination. Finally, it didn't address the distribution of the discrimination across the 9 states (was all the racism concentrated in Alabama, for example, or were all of the states discriminatory?)

The Constitutional answer is clear. Absent uniquely local discrimination in covered jurisdictions, the federal government did not have the right to subject certain states to stricter election regulations than others. Ironically, the court's decision will also yield utilitarian benefits - on net, it will actually reduce racial discrimination. Last month, on January 16th, the Rights Act Amendment of 2014 was introduced to Congress. This amendment will subject all states that have committed five discrimination violations within a 15-year period to pre-clearance. By targeted today's problem districts, rather than the problem states of 40 years ago, the new bill will be better able to combat racism in America.

For all the rhetoric, condensation, and indignation that have been published by the court's critics, the majority in Shelby vs. Holder not only made the correct constitutional decision (their only mandate), but also the best decision for the American people. Let's us laud the Supreme Court for its coverage and hope it continues to decide law on its constitutional merits, rather that its popularity at the polls.