On Tuesday, June 25, the Supreme Court rolled back history when it overturned a key provision of the 1965 Voting Rights Act that was instrumental to nearly 50 years of political and social change. The Court’s decision in Shelby County v. Holder opens the floodgates to new forms of voter suppression and discriminatory electoral tactics. Congress should prevent this calamity by expanding voting rights nationwide.
The Voting Rights Act featured two important methods of combating racially discriminatory electoral practices. Section 2 prohibits ‘practices or procedures’ that discriminate on the basis of race, and allows individual plaintiffs to challenge those practices and procedures in court, just as Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment. Section 2 is an individualistic, case-by-case approach to fighting pervasive discrimination.
In contrast, section 5 is a prophylactic measure, which requires covered jurisdictions to receive preclearance from federal authorities before any proposed electoral change or voting procedure takes effect. Under section 5, the burden is placed squarely on states with a history of voting discrimination to prove that any proposed change will not negatively impact voting rights. Section 2 was the legal equivalent of ‘whack-a-mole.’ As soon as one exclusionary tactic was successfully challenged, new ones popped up to replace them. Section 5 was designed with an understanding that, in certain jurisdictions, a case-by-case approach is too costly, time-intensive and inadequate to the task of rooting out endemic voting discrimination. Prophylactic measures were needed, not only to prevent potentially discriminatory rules from going into effect, but also to deter local entities from attempting to enact them in the first place.
While declining to strike down the preclearance provision, the Court, in an opinion authored by Chief Justice Roberts, overturned the formula used to determine which jurisdictions were covered, in effect nullifying the preclearance requirement. After Shelby, section 5 remains on the books, but dead law. No states or jurisdictions are covered by it. The Court’s primary complaint is that the formula used to determine which states and other jurisdictions should be covered is outdated and no longer well-tailored to solving the problem of voting discrimination. The Chief Justice pointed to the fact that voter registration among African-Americans, one of the elements in the coverage formula, was higher in some covered jurisdictions than non-covered jurisdictions.
While undoubtedly the most expedient means to achieve the Court’s desired goal of rolling back voting rights, the Court’s complaint that covered jurisdictions may no longer be the most serious areas of voting discrimination is not without merit. The coverage formula primarily targeted southern states in the thrall of Jim Crow. Yet, more recent experience shows that discriminatory voting laws may appear almost anywhere. Just this term, the Supreme Court struck down Arizona’s voter ID law targeting Hispanic voters, which required proof of citizenship. Pennsylvania’s voter ID law was successfully challenged by the ACLU in 2012, and other voter ID laws and exclusionary tactics have been attempted across the Midwest, with Indiana’s 2008 Voter ID laws, and other myriad violations of federal law in Ohio in 2004. The coverage formula was a bit like a round peg in search of a square hole.
Even if the Court is correct in its assessment that voting rights are no more likely to be infringed in covered than non-covered jurisdictions, the grounds for holding section 4 unconstitutional on the basis of that distinction are tenuous at best. Why is this distinction constitutionally relevant? What provision of the Constitution prohibits Congress from treating states differently with respect to voting regulations? There is none that I can find. The equal protection clause, for example, protects persons, not states.
Rather than cite to an explicit provision in the Constitution that prohibits Congress from drawing such a distinction between states, the Court repeatedly refers to “the traditional equal [State] sovereignty” and “basic principles of federalism” as grounds for its decision. Bear in mind that this “tradition” and these “principles” are not explicitly evident in any Constitutional provision, but rather read into the Constitution through case law and tenuous extrapolation of the Tenth Amendment. The Tenth Amendment clarifies the distribution of powers under the Constitution, but does not circumscribe or limit powers explicitly delegated to Congress. The Tenth Amendment has no application here.
Perhaps the most astonishing aspect of this case is that the Court’s conservative wing strikes down the Voting Rights Act as unconstitutional based on principles that are not textually explicit in the Constitution itself. This reading of “federalism” into the constitution as a ground to overturn an otherwise valid legislative enactment is judicial activism of the most blatant kind.
Even worse, if one were to read principles of federalism and “equal state sovereignty” into the original Constitution, they would clearly be trumped by the Reconstruction Amendments (the 13th, 14th, and 15th Amendments). The Voting Rights Act was passed to enforce the Fifteenth Amendment. The Reconstruction Amendments were specifically passed to abrogate states’ rights after decades of oppression of African-Americans in those states. Even if Tenth Amendment’s implicit federalism concerns were constitutionally relevant (a questionable premise at best), they would be superseded in this case by the Fifteenth Amendment, which was passed later in time. States’ rights should have no relevance here, since the Voting Rights Act was designed to enforce a provision intended to abrogate states’ rights.
Ultimately, the Court invites Congress to “draft another formula based on current conditions.” While an ironic gesture in light of current political gridlock, Congress should accept the Court’s invitation with vigor. Since only Justice Thomas would have voted to strike down Section 5’s preclearance requirement, Congress should re-enact the Voting Rights Act formula, but cover the entire United States, with confidence in the Court’s promise. The burden of proof for electoral changes should be on the states, and not plaintiffs, to establish that any change to electoral procedures or voting laws will not have a discriminatory impact. There is nothing more fundamental in a democracy than fair electoral rules. The logic of the Supreme Court’s decision in Shelby assures that a nationwide formula would not violate equal sovereignty: each state would be treated the same.
Section 5 of the Voting Rights Act is not only historically significant, but stands as a contemporary example of the kinds of structural reforms necessary to improve local conditions and guarantee equal citizenship. It is a model for addressing structural harms in a dynamic system. Section 2's individualistic, case by case approach cannot account for perpetually novel forms of exclusion. Overturning the coverage formula virtually guarantees, if not encourages, such exclusion. Congress must act to ensure that doesn’t happen.
President Obama, on more than one occasion, has acknowledged the role of the Voting Rights Act in his election to the Presidency in 2008. It is not a coincidence that the Court accepted this case just 3 days after the President’s re-election, in which racially polarized voting patterns were increasingly evident and the margin of non-white voters proved decisive. The radical, partisan and activist character of the Court’s decision in Shelby should fool no one.