Yesterday, by a 5-4 vote, the Supreme Court effectively eviscerated the Voting Rights Act of 1965. Although originally signed into law by President Lyndon Johnson, the Act was extended by President Bush in 2006, after clearing the Senate 98-0. The New York Times (along with other media outlets) condemned the opinion as "intellectually dishonest" while more conservative voices found it "defensible."
Congress enacted the Voting Rights Act under the Fifteenth Amendment. That Amendment gives express and broad power to Congress to secure voting rights of communities of color. It only requires any such legislation be "appropriate." As Justice Ginsburg stated in her blistering dissent: "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." (slip op., dissent at 8). Moreover, Justice Ginsburg also noted that the Constitution always limited state sovereignty regarding elections under the elections clause.
No observer can possibly claim that racial discrimination in voting is over. Indeed, Justice Roberts, who wrote the majority opinion, admits that "voting discrimination still exists." Further, the Voting Rights Act effectively operated for decades to reduce disparities in voter registration. (slip op. at 15). Again, Justice Roberts admits this.
But instead of leaving effective and necessary legislation in place, Justice Roberts uses the success of the Act to claim that the Act is not based sufficiently on "current conditions." In fact, Justice Roberts seemingly chides Congress for not "updating" the Act.
That is not an appropriate level of deference for voting rights legislation under the Fifteenth Amendent. Judicial review does not give the Court license to second guess our elected officials. This is judicial activism running riot. Tellingly, Justice Roberts cites to no precedent overturning Congressional voting rights legislation under the Fifteenth Amendment.
Some claim that this Court simply acts in a brazenly partisan way. While I hesitate to reach that conclusion, it seems clear that the Supreme Court fears the voting power of communities of color. First, they dare not overturn affirmative action (just yet). Then, they nullify the Voting Rights Act of 1965. The majority of the Court acts as though the voting power of communities of color is the problem. The Court has certainly given a green light to GOP efforts to disenfranchise voters of color nationwide, as evidenced here, here, here and here.
So, we have little option, as those resistant to the efforts of entrenched power to perpetuate injustice illegitimately, but to march on Washington. There is already a march organized for August 24th to commemorate Martin Luther King's I Have a Dream speech of 50 years ago. This march forms an ideal platform to demand a new voting rights act now.
Given the nature of efforts to disenfranchise minority voters perhaps a new Voting Rights Act of 1965 could emerge as an even stronger source of protection for voting rights across the entire nation. If the Court sought to curb the voting power of voters of color, this decision could easily backfire. Indeed, efforts to disenfranchise minority votes seem to increase turnout.
The five justices in the majority, as Republican appointees, certainly belie any supposed GOP effort toward greater inclusivity.
See you in Washington!