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The Gaping Hole in the Conservative Case Against the Voting Rights Act

January 15, 2013

Over the holiday season, Shelby County, Alabama and its amici, including the States of Alabama, Alaska, Georgia, South Carolina, South Dakota, Texas and a handful of conservative legal organizations, filed briefs in the Supreme Court, urging the Justices to strike down the preclearance requirement of the Voting Rights, the Act’s admittedly strong medicine designed to prevent and deter racial discrimination in voting in jurisdictions with the longest history of voting discrimination.  The basic story running through these briefs is a simple one – the South has changed, the bipartisan majorities of Congress that renewed the Act in 2006 had no basis in fundamental constitutional principles in singling out the primarily Southern covered jurisdictions for special regulation, and that the Court should strike down the Act to vindicate the Constitution’s protection of the equality of states.  This is a powerful narrative that conservative Justices on the Court may well find convincing, but it is striking how badly divorced these arguments are from what the Constitution says, and what Congress found in 2006, when it used its express constitutional powers, to protect the right to vote free from racial discrimination.

   Let’s start with the plain words of the Constitution.  The Fifteenth Amendment provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged
. . . by any State on account of race, color, or previous condition of servitude.”  To ensure that this new constitutional guarantee would be actually enjoyed, the Fifteenth Amendment goes on to provide that “Congress shall have the power to enforce this article by appropriate legislation.”  To protect the right to vote free from racial discrimination, Congress has the power to target states that have a long history of racial discrimination in voting with special, more stringent remedies.  As Shelby County and its amici studiously ignore, there is no Equality of States Clause of the Constitution that requires Congress to treat Alabama or Mississippi the same as Oregon or Massachusetts when it enforces the Fifteenth Amendment’s command of voting equality, or to ignore a history of racial discrimination in voting that continues to the present day throughout the covered jurisdictions.  Indeed, the Supreme Court has upheld the preclearance requirement four times and repeatedly recognized the Voting Rights Act as the archetype of appropriate enforcement legislation in countless others precisely because the Act targets only those jurisdictions with a proven history of racial discrimination in voting.  Thus, for example, in 2000, in United States v. Morrison, the Supreme Court struck down the civil damage provision of the Violence Against Women Act because “it applies uniformly throughout the Nation,” distinguishing it from the VRA’s preclearance requirement in which “the remedy was directed only to those States where Congress found that there had been discrimination.”  It would turn the Fifteenth Amendment on its head to strike down the Voting Rights Act because Congress targeted the worst constitutional violators. 

Shelby County and its amici strive to make the case that the Voting Rights Act no longer identifies the worst constitutional violators.  But Congress – the institution specifically empowered by the Constitution to enforce the Fifteenth Amendment’s command of equality in the voting booth – disagreed.  In 2006, amidst considerable progress, Congress also found continuing resistance to the Constitution’s promise of a multi-racial democracy, open to all without regard to race, concentrated in many of the same states that resisted the Fifteenth Amendment, flouted its commands, and made the Voting Rights Act a necessity.  With demographic changes giving minorities a real chance to exercise political power, governments interposed discriminatory voting changes to stifle their constitutional rights.   The examples of state-sponsored voting discrimination in the covered jurisdictions detailed in record –   redistricting decisions made on the basis of race and even accompanied by use of racial appeals, intimidation and harassment at the polls, closing or relocating polling places and even cancelling elections to deprive African Americans of the right to vote – show why large bipartisan majorities of Congress concluded that it was still appropriate to single out jurisdictions with a long history of voting discrimination for coverage under the Voting Rights Act’s preclearance requirement.  While states like Ohio and Pennsylvania may be badly in need of election reform, Congress found that only in the predominantly-Southern covered jurisdictions do government officials express overt hostility to minority voting power, seek to use all-white clubs as polling places, and even go to the extreme of cancelling elections when it appears that racial minorities will be successful at the polls.    

Shelby County and its amici argue Congress rode roughshod over the Constitution in insisting that preclearance was still necessary to ensure protection for the right to vote free from racial discrimination in jurisdictions with long proven records of voting discrimination.  These arguments get the Constitution exactly backward.   By any measure of fidelity to the Constitution, Shelby County should be an easy case: the Constitution’s text expressly gives to Congress the power to enact legislation to enforce the Constitution’s prohibition against racial discrimination in voting, arming Congress with substantial power to ensure that our most precious fundamental right is enjoyed by all Americans regardless of race; the Supreme Court’s cases have on no less than four occasions affirmed the constitutionality of this very Act; and the record developed by Congress manifestly shows that racial discrimination in voting is still a blot on our Constitution’s promise of a multiracial democracy.  The question now, as the case moves closer to oral argument next month, is whether the Roberts Court will follow the Constitution or subvert it.

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