The next big showdown over the constitutional powers of the federal government is nearly upon us. When the Supreme Court reconvenes in October, the Court is widely expected to grant review in Shelby County v Holder, a constitutional challenge to Congress’ 2006 renewal of the preclearance requirement of the Voting Rights Act, one of the Act’s most important and successful provisions in preventing and deterring racial discrimination in voting. Since it was first enacted in 1965, the Voting Right Act has required jurisdictions with a history of racial discrimination in voting to get permission – “preclearance” – from the U.S. Department of Justice or a three-judge federal court in Washington D.C. before changing their voting laws and regulations. Recent court opinions written by judges across the ideological spectrum illustrate just how vital preclearance remains as a tool for preventing racial discrimination in voting.
The case for the constitutionality of the Voting Rights Act should be open and shut. The Fifteenth Amendment specifically empowers Congress to enact “appropriate legislation” to “enforce” the Amendment’s guarantee that “[t]he right of citizens of the United States to vote shall not be denied or abridged . . . on account of race . . . .” However, in 2009, in NAMUDNO v. Holder, in an opinion written by Chief Justice John Roberts, the Court concluded that the Act raised serious constitutional questions, demanding that the Act’s burdens be justified by “current needs” while avoiding deciding the constitutionality of the Act’s preclearance requirement. Shelby County gives the Court the opportunity to decide, once and for all, whether the preclearance requirement falls within the scope of Congress’ power to protect the right to vote free from racial discrimination.
With so much at stake, it is unfortunate that, rather than focusing on what the Constitution says about the express powers of Congress to protect the right to vote from the scourge of racial discrimination, a number of the nation’s leading left-leaning election law experts (see here and here) are focusing on Congress’ failure to update the Act’s preclearance coverage formula to account for changing political conditions. In the words of NYU Professor Rick Pildes on Scotusblog, “Congress has put the Supreme Court in an excruciatingly difficult position” by not updating the coverage for preclearance either when it reauthorized the Act in 2006, or after Chief Justice Roberts’ 2009 opinion in NAMUDNO. The problem with this handwringing from the left is two-fold. First, it demonstrates a remarkable naiveté about the political process: as observers of the 2006 reauthorization have recognized, opening up the preclearance coverage formula was a can of worms that almost certainly would have unraveled the entire effort to renew the Voting Rights Act. Second, this finger pointing at Congress lets the Court’s conservatives off the hook, when, notwithstanding any imperfections, the Voting Rights Act is plainly within Congress’s constitutional authority to enforce the Fifteenth Amendment’s prohibition on racial discrimination in voting.