It's hard to imagine a clearer case of activist justices legislating from the bench than the Supreme Court's 5-4 decision Tuesday to strike down a portion of the landmark 1965 Voting Rights Act, widely regarded as the most important civil rights legislation in U.S. history.
The potential consequences for our democracy are chilling. Congress must act to protect the rights of millions of Americans.
Sections 4 and 5 of the Voting Rights Act require some state and local governments, mainly in the South, to seek permission before making changes to voting laws — for example, changing early voting rules or identification requirements or drawing new district lines. The jurisdictions have long, ugly histories of attempting to disenfranchise minorities. Congress wisely decided voting rights are so crucial that the usual remedy, filing lawsuits after the fact, was inadequate. The law, last reauthorized in 2006, has been incredibly effective.
The right to vote was guaranteed by the Civil War amendments to the Constitution, but discrimination through poll taxes and the like kept vast numbers of citizens from exercising it until the Voting Rights Act was passed.
The court has repeatedly upheld it. But Tuesday's ruling said Congress' method for determining which jurisdictions are subject to these "preclearance" requirements was outdated and failed to take into account improvements in their governance. Essentially, because the law has been so effective, it is no longer needed.
As Justice Ruth Bader Ginsburg pointed out in her scathing dissent, it was a lose-lose proposition. If the law had been ineffective, it would not have been reauthorized.
The ruling is striking for its failure to recognize widespread recent attempts to limit minority voting. And the conservative majority, alarmingly, substituted its own judgment for that of Congress.
The Senate vote to reauthorize the law in 2006 was unanimous, and just 33 voted against it in the House. Republican James Sensenbrenner was chairman of the House Judiciary Committee at the time. He recently told NPR News, "What the 12,000 pages of hearing (testimony) showed" is that for many of the jurisdictions, "there still was pervasive discrimination. ... Almost the entire Congress was convinced that (the states) hadn't cleaned up their act."
Indeed, as Ginsburg noted, the Justice Department blocked more than 700 rules under the law from 1982 to 2006 because of their discriminatory effect. And there is no way to quantify changes that were never proposed because the law was a deterrent. Congress saw scores of specific examples that the law is necessary.
Even now, voter suppression attempts continue. Since 2010 about a dozen states, including six covered by the law, have launched widespread, organized campaigns using the modern-day equivalent of poll taxes. Texas' voter ID law and new political maps were blocked under the act because they discriminated against Latinos. The state will now begin enforcing them.
Ginsburg wrote in her dissent: "When Congress acts to enforce the right to vote free from racial discrimination, we ask not whether Congress has chosen the means most wise, but whether Congress has rationally selected means appropriate to a legitimate end." Given the history, the law is clearly rational.
Congress should devise a new method for identifying jurisdictions subject to preclearance for voting rules. In 2006 it stuck with the rules from an early version of the law as a compromise. Coming up with a new list in the current political environment is probably impossible.
Citizens are left with few protections against real threats to their ability to exercise their most precious right. This ruling, combined with the Citizens United decision that reshaped campaign finance, leaves the future of American democracy seriously in doubt.