Private: Roberts Court Ignoring Congress, Deals Major Blow to Voting Rights Act

by Jeremy Leaming

The Supreme Court’s conservative majority has been itching to gut the landmark Voting Rights Act for some time and today it took a big step toward doing so. The conservative bloc led by Chief Justice John Roberts Jr. invalidated Section 4 of the Voting Rights Act (VRA), which includes a formula for determining the states, towns and localities that must obtain approval or preclearance from the federal government for proposed changes to their voting laws and procedures.

In its 2009 opinion in Northwest Austin Municipal Util. Dist. No. One v. Mukasey, the conservative justices avoided the constitutional challenge to the heart of the Voting Rights Act, but nonetheless reiterated their desire to gut it.

This time around a constitutional challenge brought by officials in a mostly white Alabama County gave the conservative bloc what it needed. Writing for the majority in Shelby County v. Holder, Roberts noted that in Northwest, his conservative colleagues “expressed serious doubt about the Act’s continued constitutionality.”

Roberts continued, “We explained that Sec. 5 ‘imposes substantial federalism costs’ and ‘differentiates between States, despite our historic tradition that all the States enjoy equal sovereignty.’ We also noted that ‘[t]hings have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.’ Finally we questioned whether the problems that Sec. 5 meant to address were still ‘concentrated in the jurisdictions singled out for preclearance.’” Sec. 4 includes the forumla for deciding what jursidictions must comply with the VRA's Sec. 5 preclearance provision. 

Though the case raised constitutional claims of equality among Americans, like ensuring minorities are not deprived of a fundamental right to vote, the conservative justices in Shelby were much more interested in equality among the states. As they put, citing Northwest, a “fundamental principle of equal sovereignty. Over a hundred years ago, this Court explained that our Nation ‘was and is a union of States, equal in power, dignity and authority.’ Indeed, ‘the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.’”

“The Voting Rights Act sharply departs from these basic principles,” Roberts wrote. “It suspends ‘all changes to state election law – however innocuous – until they have been precleared by federal authorities in Washington, D.C.”

The conservative bloc was also incredibly confident that voter discrimination in the covered jurisdictions, mostly in the South, is a thing of the past. The majority pointed to an increase in minority registration and turnout.

While voter discrimination allegedly subsided, Congress made the VRA more stringent and its formula for determining covered jurisdictions remained static, the majority groused. “Coverage today is based on decades-old data and eradicated practices,” Roberts wrote.

When Congress reauthorized the VRA in 1996, which it did overwhelmingly, it should have altered its coverage formula, Roberts argued. “It instead reenacted a formula based on 40-year-old facts having no logical relationship to the present day,” he said.

Roberts also claimed that the majority was carefully invalidating a provision of the VRA, and maintained the Court was providing “no holding” on Section 5. Instead Roberts said Congress could create a new formula.

The dissent, lodged by Justice Ruth Bader Ginsburg and joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, however, found that the majority had usurped a job for Congress, and in a rather sloppy manner. (Congress, Ginsburg wrote, should be given deference in its constitutional authority to create appropriate legislation to enforce the 14th and 15th Amendments.)

“The question this case presents,” Ginsburg wrote, “is who decides whether, as currently operative, Sec. 5 remains justifiable, this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments ‘by appropriate legislation.’”

Ginsburg also took issue with the majority’s sweeping assertion that discrimination in voting is no longer a significant problem.

“Although the VRA wrought dramatic changes in the realization of minority voting rights, the Act, to date, surely has not eliminated all vestiges of discrimination against the exercise of the franchise by minority citizens.” She noted the “large numbers” of proposed changes that the Department of Justice have declined to approve and the finding by Congress that covered jurisdictions have resorted to “other measures” to “dilute the increasing minority voter strength.” Some of those measures, she noted, include “racial gerrymandering, the redrawing of legislative districts in an ‘effort to segregate the races for purpose of voting.’”

Ginsburg elaborated on Congress' constitutional authority to enforce the 14th and 15th Amendments, which outlaw discrimination in voting and promise due process and equal protection under the laws.

“When confronting the most constitutionally invidious form of discrimination and the most fundamental right in our democratic system, Congress’ power to act is at its height,” Ginsburg wrote.

The majority, according to Ginsburg, failed to seriously look at Congress’ work behind the reauthorization, relying instead “on increases in voter registration and turnout as if that were the whole story.”

Civil rights and constitutional law groups also took great issue with the Shelby majority.

Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund (LDF), called the decision “an act of extraordinary judicial overreach. By second-guessing Congress’ judgment about which places should be covered by Section 5 of the Voting Rights Act, the Court has left millions of minority voters without the mechanisms that have allowed them to stop voting discrimination before it occurs. This is like letting you keep your car, but taking away the keys.”

Alliance for Justice President Nan Aron said the conservative justices “betrayed principles of justice and fairness embodied in this law for half a century – and showed a callous disregard for the realities still faced by people of color.”

ACS President Caroline Fredrickson knocked the Shelby County opinion, saying it “effectively kills the Voting Rights Act’s major enforcement provision.” Fredrickson also blasted the conservatives for claiming to adhere to judicial restraint, while aggressively finding a way to undermine the work of Congress.

At the 2013 ACS National Convention, civil rights hero Rep. John Lewis (D-Ga.) urged supporters of equality to prepare to mobilize in the face of an opinion hobbling the Voting Rights Act. “We must get in the way, we must get in trouble, good trouble; use the law. Use the Constitution, to bring about a non-violent revolution right here in our country.”

Constitutional Interpretation, Democracy and Elections, Redistricting, Supreme Court, Voting Rights