John Roberts to Congress: I Told You So

Matthew Cooper

Chief Justice John Roberts gave Congress the middle finger Tuesday, striking down a key section of the Voting Rights Act and telling lawmakers that they'll need to pass a new bill if they want the rest of the law enforced.

Roberts knows that ain't gonna happen—and he's just fine with that.

In his opinion striking down the formula that covers nine states, mostly in the South, the chief justice chides Congress countless times. Over and over again, he cites his own ruling in the 2009 voting-rights case, where he also wrote the opinion that all but told Congress: Fix this or we're going to do it for you. "We expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so," Roberts wrote. "Its failure to act leaves us today with no choice." I told you so!

Now Congress—the screwed-up, can't-get-anything-done Congress—has this racially charged,politically sensitive mess dumped in its lap. If you wanted to combine immigration and redistricting into one thorny issue, this is it.

Here's the gist of what happened. Back in 1965, in the throes of the civil-rights movement, Congress passed the Voting Rights Act. The law did many things, most notably requiring certain jurisdictions, mostly in the South, to get Washington's approval before they made any change to voting procedures. This affected everything from congressional redistricting to moving the location of a polling place. South Carolina challenged this "preclearance" provision shortly after the act's passage but the Court upheld it, acknowledging that it was an extraordinary usurping of state sovereignty and equality but that it was necessary because the problem of voter discrimination was so grave. That part of the law, Section 5, was a temporary statute intended to last only five years. But it was renewed several times, most recently in 2006 for 25 years.

Meanwhile the formula used to determine who gets covered—Section 4—barely changed, and that's what the Court did today. It said that Congress could still target some places for special protection but you can't use a formula that's essentially the same since George Wallace ran Alabama. "History did not end in 1965," Roberts wrote for the conservative bloc. For its part, the liberal wing of the Court argued that Congress had done its job and that the Court had overstepped its bounds. Scoffed Justice Ruth Bader Ginsburg in her dissent: "Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."

So now Congress has a mess on its hands. Renewing the Voting Rights Act used to be so easy. In 2006 it passed 98-0 in the Senate and with almost 400 votes in the House, including the likes of House Speaker John Boehner and House Majority Leader Eric Cantor before President George W. Bush signed it. But the act was essentially on auto-pilot.

Congress will need to come up with a new formula, but this poses all kinds of problems. First, the Court left little guidance about what would pass judicial muster, saying that it had to be based on contemporary data. Second, Congress can barely get anything done, so how is rewriting a coverage formula for the Voting Rights Act going to get through when something as quotidian as the farm bill can't?

Most of the Hill was still digesting the opinion on Tuesday morning. But reactions fell along predictable lines. Civil-rights groups were eager to get cracking. "Congress must step in," said the NAACP Legal Defense and Education Fund. Senate Judiciary Committee Chairman Pat Leahy, D-Vt., vowed "immediate action."

But Republicans seemed more hesitant. Senator Chuck Grassley of Iowa told The New York Times that the Court's decision Tuesday showed that a key portion of the Voting Rights Act is no longer needed.

"What it tells me is after 45 years, the Voting Rights Act worked," Grassley said, "and that's the best I can say. It just proves that it worked."

Indeed it's hard to see tea-party driven Republicans in the House embracing a new formula that would put many of their districts under Washington's oversight now that they've been liberated.

What's more, if Congress did take up rewriting the Voting Rights Act to meet the Supreme Court's demands, it would likely become a highly contentious debate about voter suppression, campaign contributions, and the like. On Tuesday liberal Reps. Keith Ellison of Minnesota and Mark Pocan of Wisconsin used news of the decision to tout their National Right to Vote Amendment to the Constitution, a bill that would set national standards for voting.

This is going to be a mess. Which may be just what Justice Roberts wanted.