There’s something about the Supreme Court’s ruling in Shelby that’s bothered me all day. It’s probably unimportant — Jonathan Adler, feel free to jump in and set me straight — but as I read the ruling (pdf) this morning, I was looking for something specific: why the court majority considers Sec. 4 of the Voting Rights Act unconstitutional.
I’m not an attorney, so I’ll concede my background is limited, but in the rulings I’ve read striking down federal laws, there’s some kind of explanation as to the part of the Constitution the law ostensibly contradicts. A statute violates the First Amendment, or the Commerce Clause, or the Due Process clause, etc., and is therefore unlawful.
So on what grounds, exactly, did the court find Sec. 4 of the VRA unconstitutional? I have no idea.
Assuming I’d missed something important, I asked the Constitutional Accountability Center’s David Gans to help me out. He told me:
“Your question highlights a fundamental flaw in Chief Justice Roberts’ majority opinion in Shelby County v. Holder. The Court strikes down a core provision of the Voting Rights Act as unconstitutional without ever explaining what provision of the Constitution commands this result. Chief Justice Roberts’ opinion for the conservative majority argued that the Voting Rights Act provision was inconsistent with the ‘letter and spirit of the Constitution,’ but he never really explained why.
“His majority opinion emphasized that the Voting Rights Act diminished the sovereignty of states, ignoring that Fifteenth Amendment expressly gives to Congress broad power to prevent all forms of racial discrimination in voting by the states. As Justice Ginsburg’s powerful dissent demonstrates, the Court’s opinion cannot be squared with the text, history, and meaning of the Fifteenth Amendment.”
I agree with the decision, but not the reason. To (try to) put it succinctly, I think there should have been some formula to determine where preclearance was needed and readjusted the municipalities, counties, and/or states subject to it every few years, say 5. The way it was currently was based on a time in our history from 40 years ago. Of course nothing will be done, especially in this Congress, and I’d rather have the preclearance option than not, but at least SCOTUS did not invalidate the entire VRA.
On a different point, I sometimes don’t like the federal government setting particular unfunded mandates to the states. However, in this case, I believe that voting is such a fundamental right that it needs to be corrected at the state/local levels by the federal government. Even though most citizens do not avail ourselves of this right, it does not diminish the fact that it made this country different from its birth, a fact even Tea Party groups could/should be proud of.
1) The Voting Rights Act was not an unfunded mandate. Section 5 (preclearance) required approval from a three-judge panel of the U.S. District Court (District of Columbia) before changing “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting…” in any “covered jurisdiction” (i.e. states and localities with a history of voter discrimination).
2) The was a formula in Section 4 which had been reauthorized four times by Congress, most recently in 2006 when the GOP-controlled House of Representatives reviewed thousands of pages of documents and subsequently approved it by a 390-33 vote. The GOP-controlled Senate similarly voted 98-0 in favor, and Republican President George W. Bush signed the bill into law.
3) States and localities could have removed themselves from the preclearance list at any time by proving they hadn’t discriminated against voters. The plaintiff in this case, Shelby County, never applied to be removed from the list, nor could they have been considering their documented history of voter discrimination (most recently in 2008).
4) Chief Justice John Roberts’ desire to overturn the 1965 Voting Rights Act dates back to the Reagan Administration.
5) This decision will go down in history as one of the most egregious in Supreme Court history. It was not based on any constitutional provision. It did not “right a wrong” because the Voting Rights Act had placed no tangible hardship upon states and localities. It will open the floodgates to massive voter suppression efforts by the GOP as evidenced today in Texas.
6) Democracy is fragile, precious, and always under siege. It cannot survive unless Americans fight to preserve it. It’s obvious that neither the conservative majority on the Supreme Court, nor the right-wing of the Republican Party, place any value on democracy unless it works to their political advantage. And with minority voters soundly rejecting their agenda in recent elections, the GOP is doing everything it can to suppress that vote.
It’s disgusting. Any American who isn’t outraged by this partisan judicial activism by SCOTUS deserves to lose THEIR voting rights.
I might not have been clear on your point #1. I never thought of it as an unfunded mandate. It can be construed as such, but I think that the VRA transcends that term because voting is a fundamental right, not just a way for government to regulate an action to make it more efficient.
In regards to #5, I always thought that the formula should be updated periodically to include and remove those jurisdictions in which it is necessary to have the preclearance. I definitely agree that it will “open the floodgates to massive voter suppression” as you evidenced in Texas (http://tinyurl.com/q7uuncx).
Everything else, I totally agree with you. I would rather have a system like NH’s where there is same-day voting. I’m encouraged with CA’s online registration voting. And I think that voting should be an opt-out system, instead of an opt-in (i.e. via license registrations, college admissions, etc.) so that you’re automatically enrolled.