I haven’t yet read the opinions in Shelby County v. Holder and so won’t make any argument or analysis of the appropriateness of the ruling itself. I will quickly note that today’s ruling was 5-4, with Anthony Kennedy joining all of the court’s conservatives in the majority, with the liberal judges dissenting.
If John G. Roberts is to have a legacy, it probably won’t be upholding the Patient Protection and Affordable Care Act. It’ll be presiding over what feels like one of the most politically divided benches in quite some time, which suggests that the Supreme Court should probably be the next logical target of comprehensive government reform.
As for what just happened with the Voting Rights Act, I have to admit that I wasn’t nearly as “excited” or “nervous” about the ruling as other people have been. Southern states with governments dominated by conservatives have shown increasing hostility towards the VRA and the Department of Justice in recent years. In some instances they’ve simply ignored the preclearance law as if it never existed.
I’ve yet to make up my mind about whether or not the preclearance statute violates the tenth amendment and I’m not really interested in that debate just now. The reason for that is simple enough, the Department of Justice still has the authority to sue the states if they believe a state law violates the Constitution. Justice still has all the tools it had yesterday to deal with these disputes, like injunctions that prevent laws from being enforced until the courts have had their say.
If Justice believes that the previously iced Texas voter ID law is unconstitutional, it’s more than free to sue Texas today to put it back on ice until a district judge can hear arguments.
While I’m no fan of how partisan the Supreme Court has become (I recall a story some time ago that found the Roberts court with its conservative majority basically never rules against the interests of a corporation, and thus almost never rules in favor of employees and employee rights — tell me how that’s any different than having lawsuits heard by a panel made up of executive members of the Republican National Committee) the act of striking down a law as unconstitutional is not in and of itself inappropriate.
Congress is the most powerful branch of government by far, and has many remedies available to it. It can impeach and remove every justice on the Supreme Court and there is nothing that the courts can do about that. It can rewrite sections four and five in an attempt to maintain preclearance, but in a way that might bring justice Kennedy over to the minority’s side. It can even pass a new constitutional amendment that either contains preclearance itself, or authorizes Congress and the Department of Justice to regulate state voting laws in that way, implemented in detail by the VRA.
In fact, Congress once shuttered the Supreme Court for an entire year in early fights (late 1700s/early 1800s) over the power of judicial review.
Politics aside, Congress has ample authority to indirectly reverse today’s ruling. Whether it has the will is debatable, but it certainly has many different ways to make that happen.
In the meantime, the Department of Justice has all the authority that it needs to protect the rights of voters by aggressively challenging states laws that infringe those rights.
What may go unnoticed is the incentive that this ruling presents for Congress to comprehensively overhaul voting rights in the United States. Rather than duct-tape the VRA back together for another 50 years, what Congress really ought to do is pass a constitutional amendment that explicitly guarantees the right to vote in federal and state elections to all citizens, and then lay out a very simple set of federal guidelines that the states must adopt to harmonize the voting process.
Things that I think should be codified but which should of course be debated include:
* A national primary day for presidential candidates instead of dozens of different dates.
* An unbridgeable right to vote for citizens.
* A unified voting process across all 50 states, which includes: using the same mechanical, electronic, or online systems for a given election which undergo extensive security testing by outside experts; a single universal rule for recounts at the state and federal level; a minimum seven-day voting period with no single “election day”.
* Establish a government fund to pay for recounts.
* Prohibit new federal and state laws and administrative actions that affect voting rights up to three months before an election.
* Make voter registration automatic at the time of birth.
* Require public and private schools to educate students on their voting rights during presidential election week.
* Establish federal guidelines for a unique state-issued ID required for voting (and only voting) that is free, easily attainable, and irrevocable unless upon revocation of citizenship.
* Require all state and federal elections to accept provisional ballots in lieu of the above mentioned identification, that will only be counted if identity can be proven within a reasonable amount of time (days) after the election voting period has ended.
* Require that every citizen be directly offered their voter ID upon turning 18.
In the face of an attack on voting rights either in the courts or by the states, what Congress should do is make an unprecedented effort to protect existing voting rights and expand them further than ever before; to set a new standard for the civilized world.
America needs to lead, not turn a blind eye and go home for summer recess.