The fiftieth anniversary of the Voting Rights Act of 1965, signed by President Lyndon Johnson August 6, 1965, has revived proposals to fill a much-needed gap in the Act, to borrow one of Hanna Gray’s favorite expressions.
The gap is thanks to the felicitous 2013 Supreme Court case of Shelby County, Alabama v. Holder, which I discussed last year in these pages. The Court held unconstitutional the Act’s archaic test for determining which states must get preclearance from the Justice Department or from the U.S. District Court for the District of Columbia to change their election laws. The preclearance requirement–Section 5 of the Voting Rights Act–was supposed to be a temporary, emergency provision expiring five years after the Voting Rights Act became effective. But as Milton Friedman said, “Nothing is so permanent as a temporary government program.” Congress renewed Section 5 four times, most recently in 2006, when Congress renewed it for another 25 years.
Writing for the Court in Shelby County v. Holder, Chief Justice Roberts said that preclearance sharply departs from basic constitutional principles by allowing the federal government to veto state laws before they go into effect, reversing the burden of proof, and forcing an oddly selected group of the states to beseech the Civil Rights Division of the Justice Department or a distant court to allow them to implement a new election law.
The Court held that this onerous regime can no longer be based on a coverage formula that sweeps in states because in the 1960s or 1970s they had low voter turnout or a literacy test. Striking down the coverage formula left Section 2 of the Act still in effect. Under Section 2, state voting laws can still be challenged in court. Section 2 does not reverse the burden of proof but leaves it where it normally is in the law—on the challenger.
Nonetheless, the party line still compels liberals to recite, in nearly every article in which they mention the subject, that in Shelby County the Supreme Court “gutted” the Voting Rights Act–or better yet committed an “Historic Gutting.” Substituting a synonym for “gutted” seems to be frowned upon and may even require a trigger warning.
“Congress must restore the Voting Rights Act,” wrote the President in a letter to the editor of the New York Times last week. He and others on left remain under the misconception that in striking down the coverage formula for preclearance, the Supreme Court invited Congress to write a new one and now Congress just needs to get about the business of accepting his invitation. There was no invitation, just a warning that a new preclearance formula based on current conditions would raise the question of whether the preclearance requirement itself is unconstitutional.
Republicans in Congress do not need to help set the stage for that controversy. Instead, they should take the offensive and counter that as the states ought not to be treated like vassals, it’s time to consider repealing Section 5 altogether. Short of that, they should leave to languish in committee proposals to rehabilitate an anachronistic affront to federalism.