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The Voting Rights Act Should Survive

Liz Kennedy

Yesterday the Supreme Court heard arguments about the constitutionality of a key part of the Voting Rights Act.  This landmark piece of civil rights legislation transformed what had been for some Americans an empty promise of a right to vote into the beginning of an ability to exercise that right.

Voting is the avenue through which Americans, regardless of economic privilege, or color, or creed, can influence the composition of government and hold their elected officials accountable for their decisions.  It is how citizens impact policies that impact their lives. In the words of Representative John Lewis “The right to vote is the most powerful nonviolent tool we have in a democracy.” 

And yet, the Supreme Court has demonstrated hostility to the law. America has made significant progress in race relations in the past few decades. But in the last few years the protections of Section 5 of the Voting Rights Act have been necessary to protect the rights of voters in Texas, South Carolina, Florida and many other covered jurisdictions. As Demos’ Vice President for Legal Strategies Brenda Wright said today:

Events over the past three years, since the Supreme Court last considered a constitutional attack on the Voting Rights Act, have only strengthened the case for upholding the protections of Section 5.  Since 2009, the Department of Justice and several federal courts have found that jurisdictions covered by Section 5 have engaged in clear racial discrimination in redistricting, in the enactment of burdensome and restrictive photo ID laws, and in cutting back on early voting, to name just a few examples.   The Supreme Court must not substitute its judgment for that of Congress by dismantling this key protection against racial discrimination in voting. 

Congress, in its considered judgment, enacted this law in the face of untenable voter suppression and social upheaval.  Congress has since decided that it is appropriate to continue to provide this layer of protection for voters of color. It did this in response to continued attempts to manipulate election law in various ways which would have demonstrably disproportionately negative effects on the voting rights of communities of color. If some Justices want to make the law, let them run for elected office.  Otherwise they must leave Congress to legislate to protect voting rights as it sees fit within its power. 

Congress plainly has the power to pass laws to make sure that voting rights aren’t denied based on race or color. It’s right there in the text of the Fifteenth Amendment! “The right of citizens of the United States to vote shall not be denied or abridged . . . by any State of account of race, color, or previous condition of servitude.” The Fourteenth Amendment’s guarantee of equal protection of the laws also supports the exercise of congressional power. As Linda Greenhouse wrote: 

“Both amendments explicitly give Congress the power to enforce their guarantees “by appropriate legislation,” and both had the central purpose of giving Congress enforcement power to keep the states in line. That would seem an adequate answer to the complaint that Section 5 tramples on the sovereignty and dignity of the states, a mantra raised by Texas and Alabama — but not, interestingly enough, by every covered state. Mississippi and North Carolina have joined a brief by New York’s solicitor general, Barbara D. Underwood (several New York counties are covered), asserting that Section 5 has provided “significant and measurable benefits” in helping covered jurisdictions “move toward their goal of eliminating racial discrimination and inequities in voting.” The law “continues to play an important role,” the brief says.”

The Blog of LegalTimes described a central exchange from today’s oral argument:

Justice Antonin Scalia noted that when Section 5 was adopted in 1965, there was double-digit opposition to it in the Senate and with each reauthorization, the number of opposing votes decreased until there was no Senate opposition in 2006. "I think that's attributable to a phenomenon that has been called the perpetuation of racial entitlements," he told [Solicitor General] Verrilli. "Once you enact them, it's very hard to get out. I'm fairly confident this will be re-enacted in perpetuity" unless a court steps in to examine the justification. "The concern here is this is not the kind of question you can leave to Congress."

Verrilli said it would be "extraordinary" to look behind the judgment of Congress in "a sort of motive analysis." He added, "These are predictive judgments about human behavior and voting that Congress knows much about." And the Constitution, he said, expressly gives Congress the enforcement power in this area.

This theory of “racial entitlement” is an abhorrent way to describe legislative outcomes with which Justice Scalia disagrees. Describing the democratic process as being captured by racial minorities is cousin to concerns expressed by voter fraud mythologists that elections will be stolen by a “food stamp army” seeking to vote themselves more benefits. It is profoundly antidemocratic.

The Court has expressed particular concern with the manner in which the law chooses which jurisdictions are covered. But with its recent history of voting rights abuses, Shelby County, Alabama would be covered by any formula Congress would devise.  Its case should be mooted, and this crisis of constitutional law and democratic decision-making should be averted.