Blame the Supreme Court

Amidst all of the discussion of Georgia's very restrictive new voting law, the institution that is largely responsible is escaping blame: the United States Supreme Court. The Georgia law likely would not have been adopted and surely could not go into effect without the Supreme Court's decision in 2013 in Shelby County, Alabama v. Holder. The court, in a 5-4 decision, declared unconstitutional key provisions of the Voting Rights Act of 1965 that were meant to protect against exactly this kind of legislation.

By any measure, the Voting Rights Act of 1965 is one of the most important civil rights laws in American history. In 1964, only about 43% of adult Black men and women in the South were registered to vote. In Alabama, only 23% of Blacks were registered to vote, and in Mississippi less than 7% of voting-age Blacks were registered.

Section 2 of the Voting Rights Act prohibits voting practices or procedures that discriminate on the basis of race or against certain language minority groups. Under the 1982 amendments to Section 2, the act is violated by state or local laws that have the effect of disadvantaging minority voters. Lawsuits can be brought to challenge state or local actions that are alleged to violate Section 2.

But Congress, in adopting the Voting Rights Act, concluded that lawsuits to challenge election procedures were not adequate to stop discrimination in voting. Such litigation is expensive and time consuming. Congress also was aware that especially Southern states often invented new ways of disenfranchising minority voters. Section 5 of the Voting Rights Act was adopted to prevent such actions.

It applied to jurisdictions with a history of race discrimination in voting and required that the gain preapproval -- termed "preclearance" -- of any attempt to change "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting." The preapproval had to come either from the attorney general of the United States or from a three-judge federal court in the District of Columbia.

But in Shelby County, the Supreme Court declared unconstitutional the provisions of the Voting Rights Act requiring preclearance of changes in election procedures in covered jurisdictions. It is one of the most poorly reasoned Supreme Court decisions I ever have seen. The obvious question is what constitutional provision was violated by these provisions of the Voting Rights Act. The court never clearly answers this question. Chief Justice John Roberts' opinion focuses on how Congress, in 2006, in extending these provisions of the Voting Rights Act for 25 years, did not alter the formula to decide what jurisdictions need to get preclearance. But relying on old data does not make a law unconstitutional.

The court said that the preclearance requirement was unconstitutional because it violated the principle of equal state sovereignty, that Congress must treat all states the same. But one would search in vain to find such a requirement in the Constitution. Indeed, it is impossible to understand how justices, like Antonin Scalia and Clarence Thomas, who said that they believe in following the "original meaning" of the Constitution, could have joined this opinion. The same Congress that ratified the 14th Amendment also imposed Reconstruction, which included military rule over the states of the Confederacy. There could not be a clearer rejection of the idea that Congress must treat all the states the same. And there are countless ways that Congress treats states differently, such as in allocating federal funds.

Georgia is a state that has a long history of race discrimination in voting and where preclearance was required for changes in its election system. There is no possible way that the recently adopted Georgia law would have received preclearance given its clear purpose and effect is to suppress voting by Blacks. Indeed, if preclearance still was required, the Georgia legislature likely would not have adopted a law that so obviously would have not been allowed.

There still is hope that the Georgia law might be struck down by the courts as violating Section 2 of the Voting Rights Act because of its discriminatory effect against Black voters. But the Supreme Court heard oral arguments on March 2 in cases -- Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee -- that could dramatically limit the reach of this provision too.

These cases challenge two provisions of Arizona law. One says that a ballot is not to be counted if it was cast by a person outside of his or her precinct. The other prohibits "ballot harvesting," making it a felony to collect and deliver another person's completed ballot (with exceptions for family members, caregivers, mail carriers and election officials). The 9th U.S. Circuit Court of Appeals found that the laws violate Section 2 of the Voting Rights Act because they "have a discriminatory impact on American Indian, Hispanic and African American voters in Arizona." But based on the oral arguments, it seems a majority of the justices may be inclined to greatly limit the scope of Section 2, making it much harder to challenge laws like the Georgia statute.

If laws like the one adopted in Georgia and being considered by Republican legislatures in other states are allowed, one institution, above all, deserves the blame for allowing the disenfranchising voters of color: the United States Supreme Court. 