THE BLOG

The Supreme Court's Voting Rights Act Decision Isn't the Whole Problem

07/03/2013 03:12 pm ET | Updated Sep 02, 2013
  • Armand Derfner Litigator specializing in class actions and civil rights law

Forty-five years ago, I found myself nervously standing in front of Chief Justice Earl Warren, Thurgood Marshall, Hugo Black and the other Justices, arguing the first case to apply the newly minted Voting Rights Act. Despite my greenness, the Supreme Court ruled in favor of the Mississippi voters I represented, saying the Act must be interpreted broadly, to further Congress' "noble goal" of ending voting discrimination.

I imagined many possible futures, but none of them led to my sitting in the Supreme Court last week listening to Chief Justice John Roberts' opinion that the Voting Rights Act is no longer necessary -- and is hence unconstitutional -- because we have eradicated racism in America. Not just that, but we eradicated racism in just the seven short years since the Act's extension in 2006 by huge bipartisan majorities in Congress.

Now that the Supreme Court has ruled, and now that most of the states covered by the Act have already started on a binge of disfranchisement, we have to pick up the pieces. Congress can and should begin by enacting new legislation. But we also need a change in course by the Supreme Court. Scuttling the Voting Rights Act was so damaging partly because other pernicious Supreme Court decisions have left us with precious few other voter protections. The Voting Rights Act was not only the most effective voting protection ever; it's close to the only one we still had.

Forty-five years ago the Supreme Court used to say barriers to voting should be strictly scrutinized. With the help of Congress and the Constitution's equal protection clause, this led to rulings protecting minority voters and all voters, like outlawing literacy tests and poll taxes, ending disfranchisement of our military personnel, striking down lengthy residence requirements, and a host of others. All this reflected the view that voting is a "fundamental right" under our Constitution.

But don't tell that to today's Supreme Court. It says the right to vote is not a fundamental constitutional right. Actually, they say, it's not a constitutional right at all. Based on that view, the Court routinely upholds restrictions on voters with only the most cursory scrutiny. To look more closely at the effect of voting restrictions, to apply strict scrutiny, the Court says, would unduly "hamper" the broad leeway and control that election officials ought to have.

Even seeming victories have bitter pills for voters. In the recent case rejecting (temporarily) Arizona's attempt to require voters to present proof of citizenship, the Court gratuitously added a major ruling that cut back Congress' power to protect voters in federal elections. In order to do so, the Court overruled a 1970 precedent that upheld the "18-year-old vote" law. (Luckily, the 18-year-old vote is now in a constitutional amendment so the Supreme Court can't take it away.)

Another illustration of retreat is Section 2 of the Voting Rights Act. In holding other parts of the Voting Rights Act unconstitutional last week, the Supreme Court told us not to worry because Section 2 of the Act is still available to combat racial discrimination in voting- but it failed to mention that a series of other Supreme Court cases have watered this section down and made it harder and harder to win even blatant cases.

There is one voting-related area where the Supreme Court is protective -- money. The Court has ferociously struck down every law that interferes with campaign spending, going back to the Tillman Act of 1907. This green light for corruption knocks out state laws as well as federal -- no talk of states' rights or federalism here. Evidently, election officials ought not to have leeway in this particular area.

I believe the Supreme Court is dead wrong in its cases trivializing voters. Congress needs to act, and we need to shine a spotlight on the Supreme Court. We need to restore voting as a fundamental right and keep on pursuing the "noble goal."