Reaction To The Supreme Court’s Decision On Section 5 Of The Voting Rights Act

I am relieved that today the Supreme Court did not overturn the reauthorization of the Voting Rights Act.  Doing so would have been pure and simple judicial activism.  A nearly unanimous Supreme Court wisely did not take such a drastic step.

However I strongly disagree with the Supreme Court that Congress’ reauthorization of Section 5 poses serious constitutional concerns.  There is no more explicit constitutional grant of power to the Congress than in the second section of the 15th Amendment to protect the right to vote.

I attended the Court’s oral argument in this case in April and was disappointed to hear Justice Scalia mock the fact that this historic legislation was passed unanimously by the Senate.  We did so after building and considering a record in numerous hearings, and considering and rejecting a series of amendments that might have led to more serious constitutional concerns, or allowed backsliding from the progress we have made. Still, the Supreme Court has shown insufficient deference to the authority and consideration of Congress.  This legislation was passed by both the Senate and House overwhelmingly, and was signed into law by President Bush, who also supported its constitutionality.   Even though the Supreme Court today expressly set aside the question of the constitutionality of Section 5, the Chief Justice’s opinion nevertheless sets forth his view that Section 5 of the Voting Rights Act has achieved its purpose and should now be relegated only to history.  In fact, the democratic branches of government responsible for making such determinations received extensive evidence of continuing discrimination in covered jurisdictions.  This evidence of continuing discrimination was made part of the express findings included in and underlying the legislation passed overwhelming by Congress and signed by former President Bush.

In contrast to the tremendous resistance and bitter politics that met the initial enactment of the Voting Rights Act, three years ago, Republicans and Democrats in the Senate and the House of Representatives came together to reauthorize key expiring provisions of the Voting Rights Act of 1965 in light of contemporaneous concerns and to prevent backsliding in our efforts to preserve the rights of all Americans to have equal access to the democratic process.  The bailout mechanism contained in the law does provide a way for historically covered jurisdictions to obtain relief, as the Supreme Court recognizes.

The Court’s limited ruling allows the protective work of Section 5 of the Voting Rights Act to continue.  That, at least, is a result that we should all welcome.

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