There are politicians who would use their power to stifle minority voters, the people they view as inherently and perpetually hostile. No one denies it. The annals are rife — a town council that canceled elections when blacks became the majority; cities that switched from voting by district, to at-large elections when a minority council member was elected; states that required photo ID to vote, knowing it would disproportionately disenfranchise Latinos; cities that eliminate polling places in minority neighborhoods; ruthless gerrymandering to weaken districts likely to elect minority candidates.
Consider those recent examples. Then, read the Constitution, specifically the 15th Amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. The Congress shall have power to enforce this article by appropriate legislation.”
So why on Tuesday did the United States Supreme Court, in another contentious 5-4 decision, strike down the key provisions of the law, the very act of Congress that is primary means of enforcing the 15th Amendment? It is not that the Voting Rights Act is wrong in concept or effect, the court’s majority said. It is in truth very good and very effective. It’s just that, the law’s Section 4 concentrates enforcement mostly on Southern states solely because of their disgracefully bigoted past, ignoring contemporary conditions and the bigots elsewhere who do not fit the stereotype. The court recently told Congress to get its justifications out of the George Wallace era. It didn’t. So, the majority ruled, it has “no choice” but to declare the law’s Section 4 an unconstitutional infringement on the sovereignty of states without adequate justification.
The court’s majority is wrong. In defense of the Constitution, the court has cut the federal leash that restrained those who would ignore the 15th Amendment. It has limited the power to prevent actions that would diminish votes “on account of race.” States no longer fingered by the Voting Rights Act Section 4, can forget Section 5, that required federal “preclearance” for their suspect acts.
According to the court, constitutional restraints on federal power trump the 15th Amendment and its plain language granting Congress the power to prevent violations. The court passed the blame to Congress, which not long ago renewed the Voting Rights Act with bipartisan fanfare but justified power over the people of suspect states based on the acts of their grandparents.
Racism is not original sin borne on the Southern genetic code, and yes, much has changed. But the court in Shelby County v. Holder is willing to permit far too great a weakening of the protections of the 15th Amendment simply to tell Congress to be more thorough. Because the Voting Rights Act brought progress, the court disarms the Voting Rights Act. Congress has the power, under the Constitution to protect this crucial right, but because of Congressional sloppiness the court weakens that power.
Justice Ruth Bader Ginsburg, in her dissent, says it is wrong to assume that Congress has not considered any contemporary evidence in its decision to reauthorize the Voting Rights Act. The legislative record is full of examples of intentional downward pressure on minority votes. And, the court has already upheld the Voting Rights Act several times. “When Congress acts to enforce the right to vote free from racial discrimination, we ask not whether Congress has chosen the means most wise, but whether Congress has rationally selected means appropriate to a legitimate end.”
As soon as the court’s decision was announced, states unleashed announced plans to go ahead with voting requirements once forbidden. Those whose right to vote is diminished will have to sue under the surviving sections of the Voting Rights Act. A Congress divided will do nothing, so the right to vote will be diminished for some on account of race. This, the Constitution strictly forbids, but sadly, the court has decided that matters less than it once did.
Tracy Warner’s column appears Thursdays and Fridays. He can be reached at firstname.lastname@example.org or 665-1163.