In a disappointing 5-4 ruling, the U.S. Supreme Court today struck down Section 4, a critical provision of the Voting Rights Act that had protected the right to vote for people of color and language minorities since 1965. The Voting Rights Act of 1965 is one of our nation’s most critical federal civil rights statutes. It ensures state and local governments don’t pass laws or policies that deny American citizens the equal right to vote based on race. Section 5, a key provision of the Voting Rights Act, requires certain jurisdictions that have a history of discriminatory voting practices to secure advance approval from the federal government before changing their election laws. Section 4 of the Voting Rights Act was used to determine which states and jurisdictions were subject to government review. Importantly, today’s decision did not strike down Section 5 itself, which requires the Department of Justice to “pre-clear” any attempt to change “any voting qualification or prerequisite to voting.” Instead, today’s decision struck down Section 4 of the Act, leaving it to Congress to devise a new coverage formula to determine which jurisdictions must get government clearance before making such changes. Section 5, therefore, is alive but for the moment dormant until Congress chooses to act. In the jurisdictions that had been covered, voting remains divided along racial lines. These jurisdictions may “bail out” of Section 5 by maintaining a “clean record” – no evidence of discrimination in voting rights – for ten years. More than 100 jurisdictions have done so in recent years, including California’s Merced County. However, three counties in California still fall under Section 5 coverage: Kings, Monterey, and Yuba. Nonetheless, the state still wrote a friend-of-the-court brief urging the Supreme Court to uphold Section 5 to ensure that all Californians had equal access to the polls.
The court’s decision presents a serious challenge to Americans’ fundamental right to vote and represents a significant departure from the Court’s previous four decisions over four decades recognizing that Congress is in the best position to judge the value of the preclearance requirement and where it is most needed. As recently as 2006, Congress, with overwhelming bipartisan majorities, recognized that strong federal legislation remains necessary to ensure that all Americans can exercise the right to vote free from racial discrimination. This is as true today as it was seven years ago. The Court’s decision today is especially disheartening in light of the spate of restrictive voting laws that were passed prior to the 2012 presidential election. This pattern continues. More than 75 restrictive voting laws were introduced in legislatures across the country in the first half of 2013 alone. The Court’s decision today does not change the fact that voting laws that discriminate against minority voters remain unlawful. The ACLU will continue to challenge laws that erect barriers to voting.
Lori Shellenberger, Director, Voting Rights Project of the California ACLU

Today, the US Supreme Court reaffirmed that university admissions policies may take race into account as part of an individualized and holistic admissions process if “necessary” to create a diverse student body.
What does the decision in Fisher v. University of Texas mean for the future of affirmative action in university admissions? Not much. Universities that consider race among a variety of factors in determining admission likely won’t be affected. The reason: There is no proxy in our society for race. If schools want racially diverse student bodies, they need to take race into account.
Many analysts have argued today that universities will have to meet a higher bar, if they want to consider race in admissions. Under the Supreme Court’s 2003 decision in Grutter v. Bollinger, universities could use race as one factor in determining admissions in the interest of educational diversity so long as the admissions process does not utilize quotas or treat all members of racial groups as if they were identical. Today’s 7-1 decision toughens the standard: Universities must show that using race is essential to creating diversity.
But the Supreme Court’s fundamental approach to affirmative action has not otherwise changed. Much has been written about substitutes – like class or neighborhood – but the reality is that they have all fallen short because, simply put, race still matters in ways that no other factor of our identities does. Moreover, resorting to these claimed proxies reveals another disquieting fact about the state of our communities: We rationally speculate that zip code might be a substitute, because we know how racially segregated our cities and towns still are.
Race then pervades even supposedly race-neutral policies. The Texas program at issue in Fisher is a prime example. Under Texas’s program – called the "Top 10" – the top graduates from every high school in the state automatically gain admission to the university. Other applicants are then considered under a policy that takes numerous factors into account, including race. But as Justice Ruth Bader Ginsburg pointed out in her dissent today, the Top 10 program was crafted with race in mind.
“It is race consciousness, not blindness to race, that drives such plans,” she wrote. “[…]only an ostrich could regard the supposedly neutral alternatives as race unconscious.”
Here’s the other thing that Fisher reminds me of. The struggle over affirmative action is one that we shouldn’t be having in 2013. We wouldn’t require diversity policies, if the schools and opportunities in our society were distributed on an equitable basis. We need diversity in higher education because we need diversity in K-12 education and throughout all our institutions that are pathways to success. We are still a society of different starting lines and, in some cases, no starting lines at all. If you hear others argue differently, ask where their children attended elementary school.
We may aspire to a colorblind society. But in 2013, we still need to pay attention to race.
Mark Rosenbaum is Chief Counsel of the American Civil Liberties Union of Southern California. He argued the challenge to Proposal 2, which banned race-conscious admissions policies in Michigan.