More than a week after oral argument in Shelby County v. Holder, the scorn expressed by Chief Justice Roberts, Justice Scalia and others towards the Voting Rights Act continues to dominate the news. Whether it be Justice Scalia’s statement that the Voting Rights Act survives only because of the self-perpetuating power of “racial entitlements” or Chief Justice Roberts’ dubious claim that the state of voting discrimination may be worse in Massachusetts than Mississippi, there has been an outpouring of coverage highlighting just how the weak the arguments against the Voting Rights Act are. As Linda Greenhouse put it, it would be “an error of historic proportions” – akin to Plessy and other travesties in Supreme Court history – to strike down the Voting Rights Act when the Constitution expressly gives to Congress the power to eradicate racial discrimination in voting. With the focus on whether the Court will strike down our nation’s most iconic civil rights law, there has been virtually no attention to the fact that, when the Justices convene again on March 18th, the Supreme Court will hear oral argument in a second major voting rights case, Arizona v. Inter Tribal Council. But Inter Tribal Council is a very important case that will have huge implications for Congress’ power to protect the right to vote and to enact new, needed reforms in federal elections.
Inter Tribal Council concerns the validity of an Arizona law, adopted by the voters in 2004, requiring citizens to submit satisfactory documentary proof of citizenship in order to register to vote. If Arizona succeeds in its appeal, the effect will be to gut another critical voting rights statute, the National Voter Registration Act, designed to remove state barriers to voter registration in federal elections. In Inter Tribal Council, as in Shelby County, conservatives are ignoring the express powers that the Constitution gives to Congress to protect the right to vote, a fundamental right recognized throughout the Constitution’s text.
The Inter Tribal Council case concerns the scope of Congress’ powers under the Elections Clause contained in Article I, Section 4 of the Constitution, which gives to Congress the express power to “make or alter” state law regulating the time, place, and manner of federal elections. As CAC’s brief, co-authored with the Brennan Center for Justice and filed on behalf of prominent constitutional law professors, including Pulitzer-Prize winning historian Jack Rakove, explains, the Founders of the Constitution inserted this provision in the Constitution to ensure that the American people would have the right to freely select representatives of their choice without interference by the states. James Madison stressed the importance of the federal role in securing equal voting rights: “Should the people of any state by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the general government.” Because the right to vote was an “important and sacred” right, the Founders of the Constitution explicitly gave to Congress the power to “secur[e] to the people their equal rights of election.” The text and history of the Elections Clause shows that the Constitution’s protection for the right to vote dates all the way back to the Constitution’s Founding. Concern that states would not respect the right to vote is a theme that runs through our entire constitutional history.