In Voting Rights Decision, Roberts Rewrites the 15th Amendment

The Roberts Court, as part of the right wing’s ongoing efforts to keep “the wrong” people from voting, put a monkey wrench into the mechanism of the greatest civil rights legislation in American history. It is now up to Congress to quickly repair this act of intentional sabotage.

Under Section 5 of the Voting Rights Act, Congress requires certain covered states and counties to submit any changes in voting and election laws to the Department of Justice or a federal court for approval before they can go into effect. The covered areas are spelled out in Section 4. In Shelby County v. Holder, with an opinion written by Chief Justice Roberts, the five far-right Justices declared that Section 4’s coverage formula is unconstitutional. Section 5 remains on the books and remains constitutionally valid, but without Section 4, no part of the country is actually covered by Section 5.

Congress adopted the VRA under the powers granted by the 15th Amendment, which prohibits racial discrimination in the right to vote. Critically, this post-Civil War amendment explicitly gives Congress the power to enforce its mandate “by appropriate legislation.” On multiple other occasions, Congress has done just that, adopting and re-authorizing Sections 4 and 5 several times, most recently in 2006. The Supreme Court has upheld the statutory scheme several times as being within Congress’s authority to combat racial discrimination in voting rights. During the most recent re-authorization in 2006, after holding 21 hearings and amassing an evidentiary record of more than 15,000 pages, Congress exercised its discretion to maintain Section 4’s coverage areas as they have been.

But today – with a majority made possible by the assault on voting rights that gave George W. Bush the presidency and thus put John Roberts and Samuel Alito on the nation’s highest court – the five arch-conservatives ruled that Section 4’s coverage formula is based on old patterns of racial discrimination that no longer exist. According to the majority, states have “equal sovereignty” and must be accorded the same rights absent compelling circumstances such as those that compelled Congress to adopt Sections 4 and 5 in the 1960s.

As Justice Ginsberg’s dissent points out, the concept of “equal sovereignty” for states has always referred to the terms under which states enter the Union. So, for instance, Congress cannot require a new state to surrender its right to operate a sports gambling program as a condition of entering the Union. But Congress can and does treat states differently all the time. For instance, as the dissent points out, under federal law, only states that operated or permitted sports-related gambling schemes between 1976 and 1990 are currently allowed to have such schemes.

The Constitution gives Congress enormous discretion to decide what states should be covered by a provision like Section 5. Using the bizarre notion of “equal sovereignty of the states,” the far-right Justices usurp that role, declaring that Congress should have picked another set of states and counties. So much for the 15th Amendment’s grant of that discretion to Congress.

So where does this leave us? Well, the Court did not rule that Section 5 itself is unconstitutional, only that Congress’s decision as to where Section 5 applies is unconstitutional. So, for now, no place is protected by the preclearance provisions of Section 5. But Congress can – and must – immediately act to determine (again) the appropriate coverage areas. Hopefully, their choice won’t offend John Roberts and his ideological companions on the Court.

PFAW Foundation