Until its June 25 decision in the Shelby County v. Holder voting rights case, the Supreme Court had respected the express constitutional authority granted to the Congress by the Thirteenth, Fourteenth, and Fifteenth Amendments.
It had been clear that voting rights legislation would be upheld against facial attacks as long as the congressional legislation was rationally related to enforcement of the Fifteenth Amendment’s constitutional guarantees.
However, in its appalling June 25 assertion of judicial activism, a slim 5-4 Supreme Court majority all-but-usurped the exclusive power of Congress to legislatively protect our civil rights.
Consider these facts.
For Americans of color, the Thirteenth, Fourteenth and Fifteenth Amendments to our Constitution (commonly known at the “Civil War Amendments”) are at the heart of American citizenship, equality and freedom. Each of those amendments concludes by vesting in the Congress of the United States the “power to enforce” these guarantees of citizenship “by appropriate legislation.”
The explicit delegation of that power of enforcement to the Congress –and not to the Supreme Court – reflected the 19th century failures by the Supreme Court where slavery, citizenship, due process, equal protection and the suffrage were concerned.
Then, and now, the power of voting was the key. It remains the essential guardian of a free, equal and democratic society.
Since 1965, Congress and five presidents have acted to create or preserve our nation’s core legislative guarantee that we will “ensure that the right of all citizens to vote, including the right to register to vote and cast meaningful votes, is preserved and protected as guaranteed by the Constitution.”
On four occasions prior to Shelby County, the U.S. Supreme Court had upheld the constitutionality of the judgments that we in the Congress have made – including our judgment that the Section 5 “preclearance” requirements of the Voting Rights Act are essential to maintaining equal voting rights for all Americans.
As recently as 2006, we in the Congress reaffirmed our judgment that Section 5 remains vital to ensure that minority voters have free and full access to the polls in the jurisdictions affected. In so doing, we considered an extensive factual record – a record that was found to be especially significant by the lower federal courts that have reviewed the Shelby County challenge to Section 5.
We held 21 hearings, received the testimony of more than 90 witnesses, and reviewed more than 15,000 pages of supporting materials.
Specifically, Congress found ample evidence of voting discrimination in the jurisdictions covered by Section 5, including intentional discrimination as documented by continued disparities in registration and turnout; low levels of minority elected officials; the number of Section 5 enforcement actions since 1982; the amount of Section 2 litigation; and evidence of racially polarized voting.
Our judgments in 2006 have been proven well-founded.
During the 2012 presidential campaign, Section 5’s preclearance process led South Carolina officials to reinterpret a photo ID law to reduce its discriminatory effect. It also blocked a stringent Texas photo ID law that would have had a retrogressive effect on minority voters’ access to the ballot.
Likewise, recent litigation arising from Texas’ redistricting validates Congress’ concern that intentional racial discrimination in voting continues to pose a credible threat to the rights of minority voters.
In short, the Supreme Court in Shelby County was presented with an abundant record justifying the continued application of the Section 5 “preclearance requirements” to Alabama and the other affected jurisdictions – clearly enough to pass muster under the Court’s “rationally related” test.
As Justice Ginsburg observed in dissent (joined by Justices Breyer, Sotomayor and Kagan):
“The question this case presents is who decides whether, as currently operative, Section 5 remains justifiable, this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments ‘by appropriate legislation.’”
In my view, the “conservative” majority in Shelby County no longer deserves that appellation after engaging in the most egregious act of judicial activism since the Bush v. Gore decision that decided the 2000 presidential election.
Acting in the wake of 2011 redistricting plans and 2012 civil rights violations, the Shelby County majority has thrust the issue of equal and universal voting rights back into the forefront of our national legislative debates.
The Congress must act, swiftly and effectively, to repair what the Supreme Court has injured, legislating the factual determinations needed to re-energize the Voting Rights Act’s preclearance requirement.
The U.S. Department of Justice must closely examine the judicial record in recent voting rights cases to determine which states can and should be required by our federal courts to submit (“opt in”) to preclearance status.
Most important of all, Americans who believe in equal voting rights should now be doing all that we can to assure that no citizen is denied the right to register and vote.
It is imperative that we correct the Supreme Court’s judicial failure. Our most fundamental civil right is at stake.
Congressman Elijah Cummings represents Maryland's Seventh Congressional District in the U.S. House of Representatives.
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