Rule of Law

Supreme Court Buries Section 5 of Voting Rights Act

The Supreme Court has decided Shelby v. Holder. It is one of the most important decisions in decades.

Now, federal preclearance of state election procedures seems to be forever dead and buried. While some congressional Republicans had vowed to enact new legislation to “fix” any coverage formula deemed unconstitutional, the opinion today offers almost no room to do so. They would have to decide what’s more important: the Republican Party, or the Constitution?

Section 5 required states to obtain preclearance approval for any change involving elections — any change, even moving a polling place 20 feet. Only 15 states were covered by Section 5, including hotbeds of Jim Crow like Michigan, New York, and Alaska.

Over the years, the Justice Department unit enforcing Section 5 has had hundreds of thousands of dollars in court sanctions imposed against it for abusing the Section 5 process.  They even demanded that Alabama submit felon DNA testing to the Justice Department for approval, a law which had nothing to do with elections.

Now, voter ID laws in Texas, Alabama, and Mississippi are in effect after a delay of years. Section 5 is dead and gone, and congressional Republicans, no matter how much racialist false witness is lobbed at them, simply have no ability to resurrect the law. Will the GOP defend itself against the already-commenced false racial attacks following the decision, or will they cave?

This decision restores the original post-15th Amendment balance to the Constitution. The opinion quoted the Tenth Amendment, and the Supreme Court  asserted the core function of our federal system — to preserve liberty:

But the federal balance “is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”

In 2006, congressional Republicans hastily approved — and President Bush signed — a reauthorization of Section 5 that made the law even more burdensome. Those new burdens were not lost on the Supreme Court today:

Those extraordinary and unprecedented features were reauthorized — as if nothing had changed. In fact, the Act’s unusual remedies have grown even stronger. When Congress reauthorized the Act in 2006, it did so for another 25 years on top of the previous 40 — a far cry from the initial five-year period.

The 2006 reauthorization was a shady deal between Republicans and the racialist left: Republicans thought it would buy them peace and safely racially gerrymandered seats. Today, the Supreme Court repeatedly cited the 2006 deal as a reason to strike down the law. Some congressional Republicans have vowed to “fix” the coverage formula after any Supreme Court decision. Among them are Rep. Jim Sensenbrenner (R-WS):

When asked if Republicans have the political will to act if the VRA is struck down, Sensenbrenner told Salon: “I’m gonna make them fix it.”

There’s only one problem with his promise: the Supreme Court left almost no room to “fix” anything. Only in “exceptional circumstances” may the federal government have power to preclear state-election law changes. “Exceptional circumstances” is a term pulled from the jurisprudence to describe conditions blacks faced in 1964.

Anyone with any sense knows those days are gone.

Congressional Republicans should ignore the inevitable slurs from the racialist Left and find better things to do besides “fix” a law that the Supreme Court has found to be mostly unfixable and which has upset the constitutional order for the last couple of decades.