Gov. 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 governor 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 are in the South — that must receive approval from the Justice Department or a federal judge before changing voting laws. Parts of seven other states also must get preclearance.
This year, McDonnell signed 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 D. Obenshain of Harrisonburg, the Republican nominee 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requirement remains necessary in Virginia, but he said Tuesday that “my sense is the formula is a little bit outdated.”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.”
The court’s decision alarmed a state legislator who was a foot soldier in the civil rights struggle and helped get Virginia covered under the law.
Sen. Henry L. Marsh III, 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 R. Herring of Loudoun, the Democratic nominee for attorney general, called the 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 court’s announcement hit like a bombshell among Virginia’s 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.
A.E. 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 R. Warner, D-Va., said he will work with colleagues to “move quickly to put in place a fair process that ensures our elections are open to all.”
Warner, who said he was “deeply disappointed” in the ruling, added that it is critical that the nation’s electoral system is open, fair and not overly burdensome.
“This is particularly important, given our history of unfairly restricting access to the ballot in Virginia,” Warner said.
U.S. Sen. Timothy M. Kaine, D-Va., urged jurisdictions to continue to submit voting changes to the Department of Justice for preclearance as a sign to their constituents that they are committed to ensuring equal voting rights.
Rep. Robert C. “Bobby” Scott, D-3rd, said he believes that the Supreme Court based its opinion on the fact that minority voter turnout has increased over the past few elections.
“However, the Voting Rights Act not only protects the right to vote, but also ensures that discriminatory practices and schemes that dilute votes are blocked,” Scott said.
Claire Guthrie Gastañaga, executive director of the ACLU of Virginia, called the decision a potential death blow to Section 5.
“By doing so, the court has blocked the single most effective instrument of fairness in place since 1965,” she said.
Gastañaga said that the preclearance process blocked 15 discriminatory voting laws in Virginia from 1982 to 2006, including a $45 fee that the Republican Party planned to impose on state convention delegates in 1994 — a practice overturned as a poll tax.