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The Right’s Goofy Gripe About The Voting Rights Act: Their pitch wouldn’t fly in Traffic Court, so how can the Supreme Court go for it?

February 14, 2013

Say, a cop pulls you over for going 30 mph in a 25 zone, and gives you a $100 speeding ticket. You’re annoyed. But would you take the cop to traffic court, to argue that he has no legal right to single you out when other drivers routinely exceed 35 or even 40?  Not likely.  “Other people are doing it too,” won’t get you very far.

But, remarkably, that is the core contention you will hear, if you chance by the United States Supreme Court on February 27.  That morning, lawyers representing Shelby County, Alabama, will urge the justices to strike a key provision of the 1965 Voting Rights Act, which proved instrumental in blocking measures aimed at marginalizing minority votes in the 2012 elections.  This provision, Section 5 of the VRA, requires state and local governments with a documented history of racial discrimination in voting – mainly in the South – to obtain Justice Department or Federal District Court approval of all voting procedure changes before they can take effect. 

Last year, in states covered by this “pre-clearance” section, the Justice Department blocked vote suppression techniques familiar to all who followed the 2012 campaign: stringent voter ID laws, curtailed early voting opportunities, and discriminatorily rigged redistricting plans.  The primary line of attack on Section 5 was articulated by DC Circuit Judge Stephen Williams, dissenting from his colleagues last year when his court rejected Shelby County’s complaint.  “Why,” Judge Williams demanded, should “voter ID laws from South Carolina and Texas” be subject to enforcement procedures different from those “governing Indiana?”

Judge Williams’ solicitude for the covered jurisdictions may be shared by the conservative majority on the Supreme Court.  In a 2009 decision that raised, but avoided deciding, the constitutionality of Section 5, Chief Justice John Roberts voiced the same “other guys are doing it too” gripe:  “The evil that § 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance . . . despite our historic tradition that all the states enjoy ‘equal sovereignty.’”

A second line of attack from Section 5 skeptics, however, seems to belie their “equal sovereignty” beef. In the 2009 case, the Chief Justice contended not only that other regions are doing the same bad things that Congress targeted in the covered jurisdictions.  He also argued that these things weren’t really all that bad, after all.  “The South,” Roberts proclaimed, “has changed.”  Just where he was heading may have been foreshadowed by Justice Clarence Thomas, who dissented from his colleagues’ reluctant reprieve for Section 5, opining that he’d strike down the law altogether.  Thomas argued that Section 5 wouldn’t be valid even if rewritten to apply outside the South.  This, he contended, is because the types of “extreme” discrimination rampant in 1965 no longer occur.  “Covered jurisdictions,” he wrote, “are not now engaged in a systematic campaign to deny black citizens access to the ballot through violence and intimidation.”  In other words, the Constitution according to Justice Thomas leaves  Congress powerless to quash the comparatively subtle “second generation barriers” deployed in 2012.

To be sure, Justice Thomas’ distinction between “egregious” and more circumspect discriminatory techniques may fit the political agenda of state officials challenging Section 5.  What it conspicuously does not fit is the text of the Fourteenth and Fifteenth Amendments, which provide constitutional authority for the VRA.  The amendments command simply that “no state shall deny any person equal protection of the law,” nor “deny or abridge” the right to vote “on account of race.”  No ifs, ands, or buts. 

Supreme Court justices have no writ to strike down the VRA pre-clearance safeguard, simply because in their view Congress should have written it differently – any more than a traffic judge can junk a 35 mile per hour speed limit because she thinks the city council should have drawn the line at 25 or 45. 

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