Roberts Was Wrong on Voter Rights

Writing about the Supreme Court's outrageous decision to gut the Voting Rights Act in Shelby County v. Holder at Talking Points Memo, Amel Amhed of University of Massachusetts Amherst writes that "the court’s decision was correct about one thing: Section 4 — and frankly, Section 5 as well — was obsolete, and it had been rendered inadequate by changing facts on the ground." To be clear, Amhed's intention in making the claim that "Roberts was right" is not that Congress shouldn't protect voting rights—indeed, she advocates going further than the 1965 Act, and I agree with many of her proposals. The problem is that under Shelby County it's not clear what Congress can do to protect voting rights, and liberals shouldn't let the Roberts Court off the hook. And while like most pieces of legislation, the Voting Rights Act of 1965 was "obsolete," saying so plays into the hands of conservatives who would prefer that Congress do nothing to protect voting rights.

I've outlined the problems with Shelby County in substantial detail, but the short version is that Section 2 of the Fifteenth Amendment explicitly gives Congress the power to protect voters from racial discrimination, and no part of the Constitution restricts this power. Both Section 5 of the Civil Rights Act (which requires states with a history of discrimination to "pre-clear" any changes to their voting laws with the Department of Justice) and Section 4 (which sets out the states subject to the pre-clearance requirements) are squarely within this clearly-delegated federal power. Roberts's majority opinion tried to get around these obvious facts by asserting (but not really defending) a right to "equal state sovereignty." Roberts does not identify the textual source of this restriction on federal power in the Constitution because there isn't one, and within the American constitutional tradition, the idea that the federal government is required to treat states equally in legislation is a long-discredited anachronism invented by apologists of slavery to read restrictions on the federal power to regulate slavery in the territories into the Constitution. As the eminent judge and legal scholar Richard Posner wrote, "there is no doctrine of equal sovereignty. The opinion rests on air."

And not only is Roberts's opinion in Shelby County is a transparently outcome-driven enterprise with no discernible basis in the Constitution, it also leaves the question of what Congress can do to enforce the 15th Amendment maddeningly unclear. I agree with Ahmed that "[f]ederal oversight should not just apply to a handful of states with a history of discrimination; it should apply to all states." One might even think that this would be consistent with the "equal sovereignty of the states" holding. But the problem is that the conservatives on the Supreme Court have also repeatedly claimed that Congress can only use its enforcement powers under the 14th and 15th Amendments if its legislative remedy is "congruent and proportional" to the state violation of rights. Roberts's opinion doesn't use this precise language, but it admonishes Congress because "the Act has not eased the restrictions in §5 or narrowed the scope of the coverage formula in §4(b) along the way. [my emphasis]" While Ahmed is right that if anything the Voting Rights Act needed to go farther, Shelby County makes clear that the current Court would hold any such expansion unconstitutional.

I also agree with Ahmed that it is important for Congress to protect against "other forms of voter discrimination, including discrimination against young citizens, against low-income and poor citizens." But while the Voting Rights Act could not address all of these potential forms of discrimination—the 15th Amendment covers only racial discrimination—it did address all of them to some extent. There is of course substantial overlap between racial discrimination and these other forms—almost any change to voting laws that disproportionately affects any disadvantaged group, including Voter ID laws, will disproportionately affect people of color. Having taken away the important tool, the Supreme Court has thrown the issue back to a Congress that (as Ahmed says) if it can pass voting rights legislation at all will only pass legislation that is substantially more narrow than what existed before Shelby County.

It's also important to emphasize going forward that the pre-clearance requirement in Section 5 was far from obsolete. Because of the nature of elections, before-the-fact challenges to vote suppression are far more effective than after-the-fact ones. Once a state has conducted an election, it becomes much more difficult for the courts to order remedies. A pre-clearance requirement is not sufficient, but it's a crucial part of voting rights protection, and Congress should not concede this issue to the Supreme Court going forward.

Ahmed is entirely right that the Voting Rights Act if anything needed to be expanded. But as they make the case for a renewed Voting Rights Act, progressives also need to make clear the extent to which an appallingly poorly-reasoned opinion has tied the hands of Congress. Given the two competing strands of Shelby County's logic, Congress will only be able to restore the pre-clearance requirement if it applies it to a number of states not between 1 and 50, and the Court is likely to be equally unreceptive to innovate new protections developed under Article I as well. Even as part of an argument for a better Voting Rights Act, it's critical not to let the Roberts Court off the hook.

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