Voting rights ruling leaves Virginia in ‘limbo’

The Supreme Court effectively put an end to the advance approval requirement for voting changes.

Ken Cuccinelli

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Bob McDonnell

Virginia state Sen. Henry Marsh

Terry McAuliffe

Markus Schmidt

Michael Martz | Richmond Times-Dispatch

Tuesday, June 25, 2013

Governor Bob McDonnell on Tuesday called the Supreme Court’s ruling limiting the Voting Rights Act a “potentially monumental decision” that will leave enforcement uncertain until Congress enacts a new formula to determine which states and localities need to seek approval of election changes.

“We’re in a little bit of limbo,” McDonnell said on Washington’s WTOP radio shortly after the decision was announced. “Until the Congress passes a new formula, there’s nothing for us to submit to preclearance.”

The deeply divided Supreme Court threw out the most powerful part of the landmark Voting Rights Act, a decision deplored by the White House but cheered by many Southern states now free from nearly 50 years of intense federal oversight of their elections.

Split along ideological and partisan lines, the justices voted 5-4. Chief Justice John Roberts, writing for a majority of Republican-appointed justices, said the law’s provision that determines which states are covered is unconstitutional because it relies on 40-year-old data and does not account for racial progress and other changes in U.S. society.

The decision effectively puts an end to the advance approval requirement that has been used to open up polling places to minority voters in the nearly half century since it was first enacted in 1965, unless Congress can come up with a new formula that Roberts said meets “current conditions” in the United States. That seems unlikely to happen anytime soon.

McDonnell initially said the ruling could delay implementation of Virginia’s new law that will require voters to present photo ID at the polls beginning in July 2014. Later Tuesday, a McDonnell spokesman stepped back from that concern.

“Much depends on whether or not Congress takes action to replace the stricken Section 4 of the Voting Rights Act,” which determines which states or localities must seek preclearance, said Paul Shanks, deputy communications director for McDonnell.

Virginia is one of nine states with a history of racial discrimination — most in the South — that must receive approval from the Justice Department or a federal judge before changing voting laws. Parts of six other states also must get preclearance.

This year McDonnell signed into law two major changes to Virginia’s voting laws. One would require voters to present photo identification before casting a ballot. The other would give Virginia access to a federal database to verify citizenship status of registered voters.

Sen. Mark Obenshain, R-Harrisonburg, the Republican candidate for attorney general, sponsored both measures.

McDonnell had balked Monday in saying whether he thought the preclearance requirement remains necessary in Virginia, but he said Tuesday, “My sense is the formula is a little bit outdated.”

Terry McAuliffe, the Democratic nominee for governor, said he is disappointed in the Supreme Court’s decision.

“For 48 years, this important piece of legislation has protected the voting rights of hundreds of thousands of Virginians,” McAuliffe said.

Attorney General Ken Cuccinelli, the Republican nominee for governor, has said that he does not think Virginia should have to seek Justice Department approval for changes to the state’s legislative boundaries.

Last year, speaking to a crowd of conservatives, Cuccinelli said that seeking federal approval for even minor changes related to elections is like “running to mommy.”

Cuccinelli said in a statement Tuesday that “Virginia is committed to fair elections, fair voting districts, and ensuring everyone’s vote counts.”

President Barack Obama, the nation’s first black chief executive, issued a statement saying he was “deeply disappointed” with the ruling and calling on Congress to update the law.

The court’s decision alarmed a Virginia legislator who was a foot soldier in the civil rights struggle and helped get Virginia covered under the law.

State Sen. Henry Marsh, D-Richmond, said Congress needs to update and reinstate part of the federal act that forces areas with racially discriminatory histories to submit election law changes for federal vetting to safeguard minority voting strength.

Paul Logan, spokesman for Obenshain, said that Obenshain is confident that the voter ID legislation “will withstand any and all legal scrutiny.”

State Sen. Mark Herring, D-Leesburg, the Democratic nominee for attorney general, called the court’s decision “a step backward, and an affront to the men and women who fought for the Voting Rights Act and the countless number of Virginians whose voting rights have been protected by this legislation.”

The Supreme Court’s announcement hit like a bombshell in Virginia’s community of lawyers and legal experts.

Rebecca Green, professor of law at the College of William and Mary, predicted that the “monumental” ruling may fundamentally change the way legislatures in formerly covered jurisdictions behave.

“Now, minority voting rights advocates must wait until laws go into effect — and do harm — before challenging them; a process that can take years, cost hundreds of thousands of dollars, and often present insurmountable evidentiary hurdles,” Green said.

Dick Howard, professor of law at the University of Virginia, called it “one of the most important decisions to come out of the Roberts court. It reflects the court’s self-confidence and its determination to be the ultimate arbiter of what Congress may and may not do under the Reconstruction amendments.”

The court left standing Section 5 of the Voting Rights Act, which bars certain jurisdictions from changing voting procedures without the approval of the Justice Department or a federal judge. But it struck down Section 4, the formula that “tells us which state and localities must go through the preclearance procedures set out in Section 5,” Howard said.

“Section 5 becomes an empty shell if there is no valid coverage formula to tell us which jurisdictions must apply for preclearance,” Howard said. “From that perspective, Section 5, while technically in effect, has been gutted.”

U.S. Sen. Mark Warner, D-Va., said he will work with his colleagues to “move quickly to put in place a fair process that ensures our elections are open to all.”

U.S. Sen. Tim Kaine, D-Va., urged jurisdictions to continue to submit voting changes to the Department of Justice for preclearance as a sign to their own constituents that they are committed to ensuring equal voting rights.

The Associated Press contributed to this report.

Monday, August 12, 2013