Remember how everyone told us we’d still have federal protections on voting rights even after Justice Roberts gutted the law? Not so fast:
Now, voting rights supporters fear a determined push by the right could let the Roberts Court go after the landmark civil right’s law’s other key pillar, Section 2.
“Section 2 is a ripe target,” Christopher Elmendorf, a law professor at the University of California, Davis, who has written in depth on the provision, told MSNBC.
If the court were to strike down or substantially weaken Section 2, the Voting Rights Act would technically still exist, and would retain a few historically important functions—its ban on poll taxes and literacy tests, for instance. But, on top of the demise of Section 5, the most successful civil rights law in the nation’s history would be all but a dead letter.
Unlike Section 5, Section 2—which lets victims of racial discrimination file suit—is an after-the-fact remedy, making it a less effective tool for stopping race bias in voting. Still, it’s the strongest protection that the Voting Rights Act has left, and the weeks since the Supreme Court’s ruling in Shelby County v. Holder have made clear that Section 2 now figures to play a crucial role in legal efforts to defend voting rights, including in cases against voter ID, cutbacks to early voting, and other Republican-backed voting restrictions.
The argument against Section 2 is that by banning actions with discriminatory results, not just intent, it goes beyond what the Constitution empowers Congress to do.
“I’d guess that arguments would be made that the statute should be narrowly construed, because to read it more broadly raises serious constitutional questions,” one conservative Washington election lawyer, who asked not to be identified because he isn’t authorized by his firm to speak to the press, told MSNBC, echoing the language of the young John Roberts. “That’s how I see this as playing out.”
Indeed, the Shelby County ruling, in addition to ending Section 5 in its current form, may also have continued that process, he added. That’s because, with reference to Section 5, the justices ruled that the South’s Jim Crow history wasn’t a sufficient basis to establish ongoing intentional discrimination. That means it likely wouldn’t be sufficient with respect to Section 2 either.
It’s also noticeable that in Shelby County, the justices’ finding that Section 5 is no longer needed didn’t rely on the ongoing existence of Section 2 as a bulwark against race discrimination in voting—an argument that was the centerpiece of Carvin’s testimony Wednesday. The ruling said nothing of substance about Section 2, which, Roberts wrote, “is not at issue in this case.”
“If everybody on the court had no problem with Section 2, you would expect them to rely on it,” Baude, the former Roberts clerk, told MSNBC. “So the fact that they don’t suggests there’s at least some question about it.”
Then there’s this, from July 17:
Today the Senate Judiciary Committee held their first hearing on the post-Supreme Court gutted Voting Rights Act. Only two Republicans attended the hearing, and both of them left early.
Ari Berman of The Nation reported, “Beyond Sensenbrenner, there wasn’t much enthusiasm among Republicans on the Senate Judiciary Committee to revise the VRA. Only two Republicans attended the hearing, Senators Grassley and Cruz, neither of whom stayed the full time.
Cruz praised the Supreme Court’s decision, while Grassley and witness Michael Carvin, a prominent Republican lawyer at Jones Day, suggested that Section 2 would be an adequate replacement for Sections 4 & 5. (Section 4 determines how states are covered under Section 5, which requires that states with the worst history of voting discrimination clear their voting changes with the federal government.)”
Ted Cruz was only there to score points with Republicans ahead of his dreamed of 2016 presidential run, and Grassley showed up just to reassure people that there was no need to restore the gutted portions of the law. If Republicans can’t be bothered to even show up for a hearing, it is very unlikely that they intend on doing anything to repair the Voting Rights Act.
It would be completely in keeping with past behavior if conservatives were telling people Section 2 is a fine replacement for Section 5 while preparing to also throw out Section 2. These are the same people who voted overwhelmingly to renew the VRA while getting ready to attack the VRA in court. This scam worked so well last time, why not run it again? The question isn’t whether conservatives plan on doing anything to repair the damage they’ve done to the Voting Rights Act. They don’t. The question now becomes do conservatives plan on doing away with the Voting Rights Act altogether.