Fellow in Law and Government at American University
Washington College of Law
In the majority opinion today in Shelby County v. Holder,
the five conservative members of the Supreme Court continued their assault on
remedies for racial discrimination. The
Court held unconstitutional Section 4(b) of the Voting Rights Act, which is the
formula for determining which jurisdictions are required to seek advance
approval of voting changes pursuant to Section 5 of the Act.
William Yeomans |
Section 5, first enacted in 1965, has been widely
praised as the single most effective civil rights law. The coverage formula captured primarily the
states of the Deep South where minority voters had been brutally and
effectively denied the franchise since Reconstruction. It subjected covered jurisdictions to a
requirement that they prove to the Attorney General or a three-judge federal
court that proposed election changes would not have the purpose or effect of
discriminating on the basis of race.
The law was first enacted in 1965 and reauthorized in 1970,
1975, 1982, and 2006. In 2006, Congress
held numerous hearings and compiled a massive legislative record supporting
reauthorization. It showed that there
had been improvement in some aspects of voting, but that discrimination persisted
in ever evolving forms. Congress made
the judgment that lifting Section 5 would be premature and would likely leave Section
5’s job unfinished.
With stunning arrogance, the Court’s conservative majority
dismissed the efforts of Congress, moving Justice Ginsburg to say in dissent:
“Hubris is a fit word for today’s demolition of the VRA.” The majority barely engaged with the massive
record Congress developed, instead picking out selected facts to support its
conclusion that conditions had changed sufficiently that Section 5 could no
longer be tolerated.
The majority’s decision registers disdain for the power of
Congress. The Voting Rights Act was
enacted pursuant to the Fourteenth and Fifteenth Amendments. The Fifteenth Amendment prohibits discrimination
in voting on account of race and states:
“The Congress shall have power to enforce this article by appropriate
legislation.” The Fourteenth Amendment
similarly empowers Congress. In passing
legislation to protect the right to vote against racial discrimination,
Congress acted at the height of its powers.
Yet, the majority ran full tilt over Congress in its rush to strike down
the law. It substituted its judgment for
that of Congress, unfazed that Congress had reauthorized the statute by a
unanimous vote in the Senate and an overwhelming vote in the House.
In doing so, it seemed to elevate a previously non-existent
notion of the “equal sovereignty” of the states over the rights of individual
minority voters, who had long been the victims of state action. The Court had previously rejected the
applicability of the doctrine to Section 5 when it first upheld the law in 1966.
By striking down only Section 4(b) and leaving the preclearance
requirement of Section 5 in place, the Court largely gutted Section 5, but
explicitly left open the possibility that Congress could enact a new coverage
formula. Given the difficulty the
current Congress has in passing major legislation, the Court’s opponents of the
law may have felt safe making their offer, and instant commentators have been
quick to note the difficulty of passing such legislation.
Yet, there are strong reasons for Congress to respond with a
bipartisan enactment. First, protecting
the right of all eligible people to vote should and must be a priority for
members of both parties. Second,
Republicans and Democrats should be concerned about the slap in the face that
the Court delivered to Congress. It is
incumbent on Congress to step up and reassert its authority to make law. Finally, we are now seeing in the movement of
the immigration bill that bipartisan action in the Senate is still possible
when both parties perceive that it is in their interest. Many in the Republican Party understand that
they cannot continue to be seen as the party that opposes the interests of
Latino and other minority voters if the party hopes to remain competitive. That same instinct should lead some to
support a bipartisan effort to fill the gaping hole that the Supreme Court blew
in our voting rights laws.
William Yeomans is a Fellow in Law and Government at American University's Washington College of Law.
Read More:
--AFJ's statement in response to today's decision
--AFJ Audio Analysis, with excerpts from the oral arguments.
--More about the Voting Rights Act
Read More:
--AFJ's statement in response to today's decision
--AFJ Audio Analysis, with excerpts from the oral arguments.
--More about the Voting Rights Act
1 comment:
I think current conditions make it VERY clear that the act is needed now as much as it ever was.
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