“In Need Of A Constitutional Rationale”: Supreme Court Judicial Activism At Its Worst, Because They Felt Like It
There’s something about the Supreme Court’s ruling in Shelby that’s bothered me all day. It’s probably unimportant — Jonathan Adler, feel free to jump in and set me straight — but as I read the ruling (pdf) this morning, I was looking for something specific: why the court majority considers Sec. 4 of the Voting Rights Act unconstitutional.
I’m not an attorney, so I’ll concede my background is limited, but in the rulings I’ve read striking down federal laws, there’s some kind of explanation as to the part of the Constitution the law ostensibly contradicts. A statute violates the First Amendment, or the Commerce Clause, or the Due Process clause, etc., and is therefore unlawful.
So on what grounds, exactly, did the court find Sec. 4 of the VRA unconstitutional? I have no idea.
Assuming I’d missed something important, I asked the Constitutional Accountability Center’s David Gans to help me out. He told me:
“Your question highlights a fundamental flaw in Chief Justice Roberts’ majority opinion in Shelby County v. Holder. The Court strikes down a core provision of the Voting Rights Act as unconstitutional without ever explaining what provision of the Constitution commands this result. Chief Justice Roberts’ opinion for the conservative majority argued that the Voting Rights Act provision was inconsistent with the ‘letter and spirit of the Constitution,’ but he never really explained why.
“His majority opinion emphasized that the Voting Rights Act diminished the sovereignty of states, ignoring that Fifteenth Amendment expressly gives to Congress broad power to prevent all forms of racial discrimination in voting by the states. As Justice Ginsburg’s powerful dissent demonstrates, the Court’s opinion cannot be squared with the text, history, and meaning of the Fifteenth Amendment.”
Judicial restraint is often a rather amorphous concept, which sometimes means different things to different people. But in this case we have a piece of civil-rights legislation that was approved by the people’s representatives, and then re-approved with large majorities several times. It was signed into law by an elected president, and then reauthorized to great fanfare by subsequent presidents of both parties. It’s been subjected to judicial scrutiny over the course of several decades, and a judicial precedent has been set: the Voting Rights Act is legal.
Or put another way, when federal law is endorsed by the House, the Senate, the president, and the public, and it’s consistent with decades of Supreme Court precedent, a court majority probably ought to have a very good reason for tossing all of that aside.
But in Shelby, five conservative justices gutted the Voting Rights Act anyway, deeming it inconsistent with the Constitution because, well, they said so. These jurists said the same law used to be perfectly constitutional, but somehow morphed into being unconstitutional without anyone noticing, and without violating anything specific in the Constitution itself.
I’d argue this is the opposite of restraint; it’s activism. The justices decided to substitute their judgment for the people’s and their elected lawmakers, because they felt like it.
By: Steve Benen, The Maddow Blog, June 25, 2013
“Virginia Is The New Florida”: New Voter Suppression Efforts Prove The Voting Rights Act Is Still Needed
In 2011 and 2012, 180 new voting restrictions were introduced in forty-one states. Ultimately, twenty-five laws and two executive actions were passed in nineteen states following the 2010 election to make it harder to vote. In many cases, these laws backfired on their Republican sponsors. The courts blocked ten of them, and young and minority voters—the prime target of the restrictions—formed a larger share of the electorate in 2012 than in 2008.
Despite the GOP’s avowal to reach out to new constituencies following the 2012 election, Republican state legislators have continued to support new voting restrictions in 2013. According to a report by Project Vote, fifty-five new voting restrictions have been introduced in thirty states so far this year. “The 2013 legislative season has once again brought an onslaught of bills to restrict access to the ballot, including proposals to undercut important election laws that have recently opened the electorate to more voters,” writes Erin Ferns Lee. These measures include “strict photo ID policies…voter registration restrictions; voter purges; [felon] disenfranchisement; and policies to cut back or revoke voting laws that have made voting more convenient.”
Here’s the breakdown of where such laws have been introduced.
• Mandating a government-issued photo ID to cast a ballot: Arkansas, Connecticut, Iowa, Illinois, Massachusetts, Maryland, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Virginia, Washington, West Virginia, Washington, Wyoming
• Restricting voter registration drives: Illinois, Indiana, Montana, New Mexico, Virginia
• Banning election-day voter registration: California, Minnesota, Montana, Nebraska
• Requiring proof of citizenship to register to vote: Massachusetts, Missouri, Nevada, Oklahoma, Oregon, South Carolina, Texas, Virginia
• Purging the voter rolls: Colorado, Indiana, New Mexico, Texas, Virginia
• Reducing early voting: Arizona, Indiana, South Carolina, Texas, Wisconsin
• Disenfranchising ex-felons: Virginia.
(On the plus side, thirty states have also introduced measures to make voting easier by adopting online voter registration, election-day registration, expanded early voting and the restoration of voting rights for ex-felons.)
Most of these measures are still pending before state legislatures, but Virginia, which has gubernatorial and legislative elections this year, is leading the way in enacting new voting restrictions. On January 21, 2013, as Virginia State Senator Henry Marsh, a longtime civil rights activist, attended President Obama’s second inauguration on Martin Luther King Day, the deadlocked Virginia Senate took advantage of Marsh’s absence to pass a new redistricting map that reduced Democratic seats by diluting black voting strength in at least eight districts. The measure was ultimately defeated in the Virginia House, but the move set the tone on voting rights for the legislative session.
On Tuesday morning, as the nation followed the debate over Proposition 8 at the Supreme Court, Virginia Governor Bob McDonnell signed a strict voter ID bill. In the last election, Virginians could vote by showing a number of different IDs, including a utility bill, a Social Security card or, this being the South, a concealed handgun permit. The new law restricts the forms of acceptable ID to a driver’s license, a passport, a state-issued photo ID card, a student ID with a photo on it or an employee photo ID. The Commonwealth Institute, a progressive research group, estimates that 869,000 registered voters in Virginia may lack these forms of photo ID, and says the new law will cost the state anywhere from $7 to $21 million to implement.
McDonnell’s spokesman called the photo ID law “a reasonable effort to protect the sanctity of our democratic process.” Yet the measure will likely only exacerbate the existing problems in Virginia’s election system, according to voting rights experts. In the last election, Virginia voters waited up to seven hours to cast a ballot. “Long lines across the state were a result of insufficient resources, poor allocation of resources that did exist, and frequent breakdowns of aging voting equipment,” according to a post-election report by the Election Protection coalition.
Moreover, study after study has shown that voter ID laws disproportionately impact young and minority voters. Not only are these constituencies less likely to have photo ID, but even in states without ID laws, black and Hispanic youth were significantly more likely than whites to be asked to show ID. According to a Politico write-up of a new report by political scientists at the University of Chicago and Washington University, “17.3 percent of black youth and 8.1 percent of Latino youth said their lack of adequate ID kept them from voting, compared with just 4.7 percent of white youth.” Mamie Locke, chairman of the Virginia Black Legislative Caucus, called the ID law “a continuation of attempts by Republicans to suppress the vote of individuals who are not likely to support their right wing agenda.”
Nor is voter fraud a rampant problem in Virginia, as supporters of the voter ID law suggest. There have been only thirty-five cases of alleged election fraud since 2000 in the state, according to an exhaustive survey by News21, and only five cases led to plea deals or convictions. Ironically, the one major case of election fraud in the state last year concerned a GOP firm charged with dumping voter registration forms.
Virginia must receive approval for its election change from the federal government under Section 5 of the Voting Rights Act. The new voting restrictions enacted in Virginia and introduced elsewhere across the country show why Section 5 is still very much needed. If anything, the statute should be expanded in light of contemporary voter suppression efforts, not eliminated.
Virginia is quickly becoming the new Florida when it comes to electoral dysfunction. Like Florida, Virginia also passed new laws this year to restrict voter registration drives and to purge the voter rolls of alleged non-citizen voters. In Florida, such measures forced groups like the League of Women Voters to halt voter registration efforts and wrongly labeled thousands of eligible voters as non-citizens. All of this is happening, coincidentally, in a crucial election year for the Commonwealth.
The continued push to restrict the right to vote reveals the extent to which conservative power remains deeply embedded in the states, thanks to the 2010 election and subsequent aggressive gerrymandering by GOP state legislatures to protect their majorities. To combat this imbalance, Howard Dean’s group Democracy For America is launching a new effort to flip state legislatures from red to blue. The group will start, fittingly, in Virginia this year, and then expand to Iowa, Michigan and Pennsylvania in 2014. DFA plans to spend $750,000 targeting five seats in the Virginia House of Delegates in 2013. Jamelle Bouie explains why this is savvy politics:
It’s hard to overstate how smart a way this is for liberal groups to invest their time and money. Virginia, in fact, is a great case study for why it’s key for Democrats to make gains on the state level. Democrats control both Senate seats in the state, and it was key to Barack Obama’s victories in 2008 and 2012. Despite this, Republicans control all three statewide offices (governor, lieutenant governor, and attorney general), the House of Delegates, and have the tie breaking vote in the state senate. The result? Republicans have been able to push a strong conservative agenda in the state.
With Congress deadlocked, the states are where the action is. It’s good that people are finally taking notice, especially as state politics continue to shift further to the right in many places.
By: Ari Berman, The Nation, March 28, 2013
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