By all indications Sen.Ted Cruz is a brilliant lawyer. So I take his mischaracterizing of the Supreme Court’s Shelby County case as being disingenuous and not simply misguided. Sen. Cruz writes:
It is disturbing that new efforts are being made in the House and Senate to resurrect voting rules that were recently deemed unconstitutional by the Supreme Court. We should protect the civil rights of every American, and other sections of the Voting Rights Act already provide strong protections against racially discriminatory voting practices. The Supreme Court held that circumstances have changed dramatically in the last 50 years, and the old justifications for preclearance are no longer constitutionally applicable. We should respect the Supreme Court’s judgment.
But the Supreme Court’s judgment in Shelby County was not that preclearance is “no longer constitutionally applicable.” It was that the old preclearance regime was based on an outdated formula when it needs to be tied to “current conditions.” Indeed, Chief Justice Roberts writing for the Court majority invited Congress to come up with a new coverage formula:
We issue no holding on § 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” Presley, 502 U.S., at 500-501, 112 S.Ct. 820. Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.
Now there are reasons to believe that the majority’s suggestion of a new coverage formula was disingenuous. But let’s not pretend, as Sen. Cruz does, that the Court has foreclosed a new coverage formula.