Part 2: Gutting the Voting Rights Act: How the Supreme Court’s Shelby v. Holder decision Strikes at the Heart of Voting Rights and Our Political Process

July 18, 2013

Editor’s Note: There’s nothing more fundamental to our democracy than protecting the rights of every voter. At Wellstone Action, we work with organizations who are dedicated to protecting and expanding voting rights for every American. This is work that is going to be a growing focus of ours in 2014 and beyond. Along with partnering with civic organizations across the country to strengthen our democracy and fight back against anti-democracy policies, we are proud to have an incredible group of trainers working as part of this fight. Emma Greenman is a lawyer, advocate, and part of our trainer corps. Emma did a deep dive for us, looking that the consequences of the recent Supreme Court decision on the voting rights act. It’s an important subject, so important that we broke this piece into two posts; here's the first and below this the second. We hope you learn something from her expertise.

In Part I, I explained the Supreme Court’s Shelby holding and its effect on the power and efficacy of the Voting Right Act.  The Supreme Court’s decision will have real and immediate consequences for the rights of millions of Americans voting in jurisdictions with the worst records for voting abuses.  But Shelby’s damage reaches much farther than just sections of the Voting Rights Act.  The Court also endangered Congress’s power to pass legislation that addresses America’s history of democratic disparities and racial discrimination.  Shelby’s threat to the right to vote and Congress’s power to protect it compels action to oppose and reverse its perilous impact.

Shelby’s Biggest Blow: Eroding Congressional and Presidential Authority to Address Our Nation’s Problems

Justice Ruth Bader Ginsburg boldly declared in dissent that “[h]ubris is a fit word for today’s demolition of the V.R.A.”  She is right. The Shelby Majority flatly rejected Congress’s 2006 judgment that Section 5 was still necessary to protect minority voting rights and that Section 4 was adequate for determining which jurisdictions Section 5 should cover.  Cloaking his activist opinion in a mantle of moderation, Chief Justice Robert’s states that the Court is simply requiring Congress to ensure that the “current burdens” of the VRA are justified by the “current needs.”  But don’t be fooled.  This is not judicial moderation; it is judicial overreach of the worst kind.  The Supreme Court is usurping Congress’s power to determine the country’s current needs and to choose the policy solutions that address those needs.  In Shelby, the Chief Justice and his Majority disagreed with Congress’s judgment and their legislation, so the Court intervened and decided for itself.

This is not how it supposed to work…especially not when it comes to the 15th Amendment.  You see, laws like the Voting Rights Act, which enforce the 15th Amendment right to vote, are treated different than regular legislation because the 15th Amendment explicitly vests Congress with “the power to enforce this article by appropriate legislation.” The Court has long recognized that the authorizing language in the Civil War Amendments (14th and 15th Amendment) gives great authority to Congress to act, and thus its chosen policies get great deference. So in 1965, when the political branches finally acted to end the shameful and deliberate disenfranchisement of African American voters, the Supreme Court upheld Congress’s expansive legislative effort and power to act.  When the VRA was reauthorized in 1979, 1975, 1982, and then in 2006, the Court upheld Congress’s power to determine what was needed, and where, to protect minority voting rights.   It is not until now, in Shelby, that the Court has refused to defer to Congress’s judgment of what the problems and solutions are surrounding the issue of voting rights in America.  Shelby is not just an exercise in judicial activism, it is a break with a long line of deference in voting rights cases.

For all you democrats, with a small d, out there, the Court’s decision in Shelby should strike fear into your hearts.  Not just for its impact on the right to vote, but also for what it means for Congress’s ability to act on the important civil rights issues of our time. In Shelby, the Court arrogantly substituted its own view for the deliberate and bi-partisan decision of Congress.  The Shelby Majority rejected the evidence gathered from 21 congressional hearings around the county that generated 15,000 pages of congressional testimony documenting the existence of current voting discrimination.  The Court rejected the legislative prerogative and vast support of the democratic branches, passed unanimously by the U.S. Senate (98-0), overwhelming by the U.S. House (390-33) and signed by President George W. Bush. 

And if that feels wrong to you, it should.  Not only are the two democratically-elected branches unquestionably closer to the current issues affecting the right to vote, they are also politically accountable to American voters.  Members of Congress are elected from jurisdictions across the county and spend much of their time in those districts—listening to constituents, working with local officials, learning what problems are affecting their communities. The five Justices in the majority, and the four in dissent for that matter, are neither close to the issues affecting American voters, nor are they democratically elected by the people. While the Court plays a vital role as a co-equal branch charged with administering justice, it is neither their role nor their right to substitute their policy judgment for that of Congress and the President.

To be clear, it was the political branches, Congress and President Johnson, and not the Court that in 1965 acted to end the hundred years of shameful and unconstitutional obstruction of African American voting rights in the old confederacy.  What makes the Court’s dismissal of congressional action so out-of-touch, is the amazing act of political courage it took to pass the Act just 48 years ago.  And it is the courage and foresight of the political branches, controlled by both Democrats and Republicans, who four more times determined that the VRA was necessary and that pre-clearance was necessary to prevent discriminatory voting practices in jurisdictions with a history of voter discrimination. 

Shelby is a Setback. So Now What?

In addition to the direct impact on voting rights described in Part I, the Court’s Shelby v. Holder decision hamstrings future congressional action to deal with current and complex issues of discrimination in the political process. It reduces the influence that citizens can have, through their politically-elected leaders, on protecting their fundamental democratic rights.

Even if Congress acts to fix Section 4 and revive Section 5 pre-clearance, it will not be enough to secure the democratic promise of an equal vote.  The Shelby Majority’s lack of deference to Congress and their growing skepticism of laws addressing racial discrimination leave voting and civil rights legislation vulnerable to being overturned or gutted in the coming years. A new Court majority would be a stopgap from this legal backslide. And while there is not much indication that this is on the immediate horizon, it makes the 2016 presidential election all the more important. Elections have consequences, and who is appointed to the Supreme Court is of big consequence for civil rights and the equal right to vote.

Beyond the Court, democracy advocates must document and demonstrate the need for laws the protect minority political participation.  The public and our politicians must be engaged in the conversation about how to guarantee the promise of democratic participation to all American voters.  We must take this discussion to state legislatures and city councils. Changes to district lines, voter ID rules, polling place hours and locations, and voting technology are state and local issues that have a real and sustained impact on the right of minority voters to exercise their democratic rights. 

The rules of the game really matter.  As minority voting strength grows, so too will efforts by local politicians to protect their incumbency through discriminatory gerrymandering schemes, and efforts by states to diminish the political power of those voters through voter ID and other restrictive voting measures. It is obligatory that political advocates and organizers monitor and fight back against these measures. Section 2 litigation will play a role, but so will political organizing to defeat state voter ID laws, to expose discriminatory districting plans for what they are, and to engage the growing political power of racial and language minority voters in fighting back.  Increased political participation means more political power.  One way to fight back against these “second-generation” barriers is to mobilize participation not just to vote, but to hold elected officials accountable for guaranteeing an equal vote for every member of their district. While this will not stop all of every barrier, it will make the actions by these elected officials more political costly and less publically palatably.

It is incumbent on us—as organizers, advocates, leaders and citizens—to redouble our efforts to protect the rights of every American to an equal vote and to effective political participation.  We must do that through Congress and through the courts. But we also must do that by affirmatively engaging, empowering and growing the political participation of the minority voters most vulnerable to these barriers to participation and power.   Only then will the democratic promise of freely and fairly voting and electing one’s preferred political leaders become reality for every American. The right to vote is the right to control your own destiny in a democracy.  We must continue to work to fight for equal access to that powerful democratic promise.