Column: High Court Has Undermined Voters’ Rights
The full magnitude of the Supreme Court’s decision in Shelby County v. Holder has yet to be understood, but it is deeply troubling. The inevitable impact will be to weaken voters’ rights at a time when election-driven efforts to suppress those rights in certain populations — for partisan political gain — have increased exponentially. It will be more difficult to prevent states from discriminating against voters on the basis of race. State legislators will be encouraged to see what they can get away with, and race-based incidents of discrimination will increase.
This decision resurrects the discarded proposition that states’ rights are more important than individual rights and that federal efforts to protect citizens’ rights should defer to the sovereignty of the states. The struggle between states’ rights and individual rights — and the proper role of the federal government in that struggle — predates the Civil War. The issue has been divisive and, on occasion, violent.
I fear that the language in this decision — and its result — will reopen that wound. What was once a bipartisan consensus, achieved after many years of pain and struggle, is no longer. We can add voting rights to the list of polarizing issues that will divide Congress.
This decision is also an assault on Congress. The 14th and 15th amendments explicitly entrust Congress — not the judiciary or the executive — with the power to protect Americans from being denied the right to vote “because of race, color or previous condition of servitude.”
In her dissent, Justice Ruth Bader Ginsburg noted that “When confronting the most constitutionally invidious form of discrimination and the most fundamental right in our democratic system, Congress’ power to act is at its height.” But the court showed no deference, despite the fact that House Judiciary Committee Chairman Jim Sensenbrenner, R-Mich., had said, when the Voting Rights Act of 2007 was passed, that his committee had engaged in “one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 27 1/2 years” he had served in the House. The votes in Congress were not close: 98 to 0 in the Senate; 390 to 33 in the House. This is an example of the least democratic branch of government substituting its opinion for the most democratic branch — perhaps the single greatest example of legislating from the bench in my lifetime.
Now that the Supreme Court has closed down the pre-clearance process, enforcement of the Voting Rights Act will require the Justice Department to take individual cases to court. By any measure, the case-by-case approach will be long, arduous and unsatisfactory. An enormous commitment of new resources will be required to enforce the Voting Rights Act. It’s not likely to happen.
Gregory B. Craig was White House counsel from January 2009 to January 2010.