On the Voter Suppression Front: After 50 Years, the Voting Rights Act’s Biggest Threat: The Supreme Court
As a matter of timing, the Shelby County case comes to the Court less than one year after the justices narrowed the scope of Congressional power under the Commerce Clause even as a narrow majority upheld the Affordable Care Act. In Shelby County, the justices are similarly being asked by conservative lawyers and local officials to overrule the judgment of Congress that the core of the Voting Rights Act continues to be necessary to protect the rights of minority voters. That legislative judgment could hardly have been more clear: When the Act was last renewed in 2006 (the fourth such renewal since 1965), the margin was 390-22 in the House of Representatives and 98-0 in the Senate.
And Congress’ renewal could hardly have been accompanied by more diligence. “Congress held 21 hearings, heard from scores of witnesses, and amassed more than 15,000 pages of evidence regarding ongoing voting discrimination in covered jurisdictions,” Obama Administration lawyers have reminded the justices. Those findings, the feds now argue, are entitled to great judicial deference, even if imperfect, and even if the resulting legislation only covers certain portions of the country with a long history of discrimination in voting practices.
Indeed, the current challenge comes to the Court immediately following an election season which reminded any reasonable observer that the right to vote is still very much an open question in America. From 2010 to 2012, in red and blue states alike, restrictive new voter identification or registration laws were enacted — and promptly challenged in court. So too were dubious redistricting efforts. Many of the most nakedly partisan efforts were struck down or delayed by state judges. Other discriminatory voting rules and regulations were blunted in federal court by Section 5 of the Voting Rights Act itself — a sharp prebuttal to the argument that the provision has outlived its usefulness.
Since the 2012 election, meanwhile — since the justices agreed to hear the Shelby County case — partisan efforts to disenfranchise whole groups of people have continued. Politics explains part of this. Until last summer, for example, stringent voter identification laws were broadly sponsored by a conservative group, the American Legislative Exchange Council. But growing racial polarization, tracked by substantive new research, also has played a role. The evidence suggests that the Obama presidency has widened the racial gulf in America — and, at the same time, stoked tensions over how and which Americans should be allowed to vote.
Surely the justices cannot be surprised that a nasty political war, with strong racial undertones, has broken out over the means and manner of voting. After all, the Court is largely responsible for that development. For the past 30 years, an increasingly conservative Court has consistently sought to trim the Voting Rights Act. And in the past five years, the Court has issued two decisions which have sharply narrowed the scope of protection for minority voters. In 2008, in Crawford v. Marion County, a case which did not turn on the federal law, the Court endorsed Indiana’s voter identification law. The mere threat of voter fraud, the justices concluded, without any actual proof of such fraud, was enough to justify new burdens on voters, burdens often felt most sharply by minority groups. The Crawford ruling begat scores of similar voter identification laws around the nation.