In a year of historic celebrations, a single U.S. Supreme Court decision striking down a key provision of the Voting Rights Act – Shelby County v. Holder — puts in perspective what much of that history is about. The sharp contrasts between the decision's majority and dissenting opinions are a reminder that, as a nation, we are not done yet. That a central struggle of our nation's past – the struggle to find the right balance between what it means to be a part of an individual state as opposed to a single nation – is still the struggle of today and likely will remain the struggle of tomorrow as well.
So far, the year 2013 has featured a number of milestones in the life of this nation, the 150th and 50th anniversaries of important dates during the Civil War and the Civil Rights Movement respectively. The year began with the sesquicentennial of the Emancipation Proclamation, a celebration of President Abraham Lincoln's issuance of an executive order declaring on January 1, 1863 that "all persons held as slaves . . . shall be then, thenceforward and forever free."
More than 100 years later, on June 11, 1963, another American president, John F. Kennedy, described the state of that freedom this way: "One hundred years of delay have passed since President Lincoln freed the slaves, yet their heirs, their grandsons, are not fully free." In addition to these momentous occasions, the nation has marked the 50th anniversary of the assassination of Medgar Evers in Mississippi and the 150th anniversary of the Battle of Gettysburg, a three-day battle with over 50,000 deaths, nearly as many deaths as the entire Vietnam War.
All of these events recognize this country's struggle to become a single nation, rather than a mere collection of individual states. The ending of the Civil War paved the way for the adoption of the Thirteenth, Fourteenth and Fifteenth amendments to the U.S. Constitution. The Civil Rights Movement paved the way for the passage of the Civil Rights Act of 1964, the Voting Rights Act of 1965 and the Fair Housing Act of 1968.
These two defining moments in American history made the national motto, E Pluribus Unum, out of many one, more than just mere words.
Yet, in the midst of these commemorative events, on June 25 of this year, a 5-4 majority of the U.S. Supreme Court declared Section 4 of the Voting Rights Act unconstitutional in a ruling that emphasizes the importance of state sovereignty to the exclusion of other national values.
The majority opinion, written by Chief Justice John Roberts, noted that the Voting Rights Act "has proved immensely successful at redressing racial discrimination and integrating the voting process." In his view, this success, however, should have prompted changes in Section 4 of the Voting Rights Act, the formula used to determine which states, counties and municipalities would be subject to Section 5 of the Act, a provision preventing those jurisdictions from undertaking any changes in voting procedures until they have been approved by either the Attorney General of the United States or a three-judge court in Washington, D.C. To a majority of the Court, this significant intrusion on states' rights must be substantially justified in order for it to be upheld and, while past iterations of the Voting Rights Act met this high standard, the most recent version did not.
Nevertheless, as Justice Ruth Bader Ginsberg rightly pointed out in her dissenting opinion, the majority's concern for the power exercised by the federal government through the Voting Rights Act over certain jurisdictions, a concern grounded in Tenth Amendment principles of state sovereignty, gives short shrift to the proper constitutional foundation for the legislation: the Constitution's Fourteenth and Fifteenth amendments. As she noted about the latter, the "Fifteenth Amendment, which targets precisely and only racial discrimination in voting rights, states that, in this domain, 'Congress shall have power to enforce this article by appropriate legislation.'"
To her and the three other justices who joined her dissent, it is not tenable that the Voting Rights Act, "an Act of Congress adopted to shield the right to vote from racial discrimination, is inconsistent with the letter or spirit of the Fifteenth Amendment, or any provision of the Constitution read in light of the Civil War Amendments." Instead, given the power and authority bestowed upon Congress by the Fifteenth Amendment as well as the Fourteenth Amendment, in "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." The Court should have deferred to, not second-guessed, Congress which had compiled a record supporting the retention of the coverage formula in Section 4.
Given the problems in the 2012 elections pointed out in this page and elsewhere, if anything, states have too much power when it comes to deciding how and whether Americans will vote. With its undue emphasis on state sovereignty, the Supreme Court's opinion in Shelby County will only serve to embolden those states determined to place barriers on those seeking to vote. If there is not sufficient constitutional authority under the Fourteenth or Fifteenth amendments to protect the right to vote, then where else might we find it?•