The need for the Voting Rights Act will die, and it should die, on the day when Americans can say to one another with a straight face that racial discrimination in voting no longer exists there. Sadly, that day has not come. Before the United States Supreme Court’s oral argument this week in Shelby County v. Holder,Professor Garrett Epps cut to the core of the conflict over Section 5 of the Voting Rights Act. “On the one hand,” he wrote Sunday in The Atlantic, “there is the right to vote… the cornerstone of a democratic system.” On the other hand, he added, there is the “sovereign dignity” of the states, words and a principle that “are mentioned nowhere in the Constitution.” As we begin to contemplate a world without this vital provision of this venerable law, a world in which federal officials are deprived of one of the most successful tools they have ever had to root out racial discrimination in voting practices, it is worth noting today the relative values of these conflicting interests as they impact the everyday lives of the American people. There is simply no comparison– despite the tone and tenor of some of the questions posed Wednesday by some of the justices.
To say so is not to diminish the principles of ‘federalism” contained in the Constitution. Nor is it to exalt the idea of broad expanses of federal power and authority over traditional state functions. Shorn of hoary legal doctrine and theory, it actually is a relatively simple equation: keep away a state’s right to be free from Section 5 and you’ll ensure more citizens can vote. Leave unprotected a citizen’s right to vote by invalidating Section 5 and you’ll prevent more citizens from voting.
The right to vote is the right “which no American, true to our principles, can deny,” President Lyndon Johnson declared on August 6, 1965, the day he signed the Voting Rights Act into law. “This right to vote is the basic right without which all others are meaningless. It gives people, people as individuals, control over their own destinies.” We have waged war over this right. We have shed blood over it abroad. And in 1965 we made a commitment to one another to finally respect and nurture it here at home.
By contrast, the “right” of a state to be free from the obligations of federal law is an altogether different matter. In theory, it’s a grand, old thing. In practice, as Epps points out, the right of Shelby County, Alabama to be free from Section 5 of the Voting Rights Act is the right of local officials to be free from the burden of having to fill out paperwork to justify a potentially discriminatory new election rule or voting practice. It is the right to save litigation costs– the right not to have to appear in federal court.
Full Article: Not Yet Section 5’s Time To Die | Brennan Center for Justice.