Congress must determine voting laws based on current evidence, not a 40-year-old formula.


This is not an earth-shaking ruling. It doesn't affect substantive voting rights. It's all about a bureaucratic procedure by which some jurisdictions, but not others, must seek the prior consent of federal authorities before they modify their voting procedures in any way.

A "modification" subject to pre-clearance can be something as simple and uncontroversial as moving a polling place from the Methodist Church basement to the public library branch across the street, because the stairs at the church are difficult to navigate. As a result, the pre-clearance process is hugely expensive and time consuming for jurisdictions that must follow those rules. Some changes that could make voting easier don't get made, because they are not worth the effort of getting pre-clearance.

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All the court is saying is that if Congress wishes to subject some jurisdictions but not others to such a cumbersome procedure it has to have a good reason. Congress must determine which jurisdictions to include on the basis of current evidence of their propensity to violate voting rights and not on the basis of a 40-year-old formula.

Congress should have seen this coming. Four years ago, in Northwest Austin Municipal Utility Distrct v. Holder, the Supreme Court warned that this would happen if Congress did not reexamine the need for this process and update the formula for covered jurisdictions. Congress did nothing. The ball is now back in its court.

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Meanwhile voting rights still have important protections. If any jurisdiction modifies its voting procedures in a way that violates anyone's legitimate right to vote, it can still be sued by the federal government or by anyone whose rights are being violated.

Gail Heriot is a professor of law at University of San Diego Law School.


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