“Can Congress Salvage RBG’s Voting Rights Legacy?”

I have written this piece for Slate. It begins:

Justice Ruth Bader Ginsburg was an unparalleled champion of voting rights. One of her most famous dissents in a voting case came in Shelby County v. Holder, the 2013 Supreme Court case holding that Congress no longer had the power through enforcement of the Voting Rights Act to require states with a history of racial discrimination in voting to get federal approval before making changes in their voting rules.

Justice Ginsburg’s Shelby County dissent correctly warned that voter suppression would make a return with federal voting protection gone. And she said that the ball was in Congress’s court to pass major federal voting rights legislation under the ample powers granted to it in the Constitution. If President Donald Trump follows through with his plan to name Ginsburg’s replacement, vote suppressers will likely be emboldened by a new conservative supermajority on the court. Efforts to make it harder to vote could be supercharged in the years ahead without major action by Congress. A new Democratic Congress may well act to expand voting rights in 2020, but that legislation could face significant headwinds at the Supreme Court….

The umbrella line is a classic for the ages, but there’s another part of Justice Ginsburg’s Shelby County dissent that is equally worthy of mention but gets little attention: her belief that Congress has a great reservoir of power to protect voting rights, a reservoir Democrats must draw from should they take back control of the Senate and the presidency in November.

Justice Ginsburg’s second footnote in Shelby County reads:

The Constitution uses the words “right to vote” in five separate places: the Fourteenth, Fifteenth, Nineteenth, Twenty–Fourth, and Twenty–Sixth Amendments. Each of these Amendments contains the same broad empowerment of Congress to enact appropriate legislation” to enforce the protected right. The implication is unmistakable: Under our constitutional structure, Congress holds the lead rein in making the right to vote equally real for all U.S. citizens. These Amendments are in line with the special role assigned to Congress in protecting the integrity of the democratic process in federal elections.

As University of Michigan Law School assistant professor Leah Litman and I explained in a recent article marking the 100th anniversary of the passage of the Nineteenth Amendment—as part of a Georgetown Law Journal symposium that also featured a conversation with Justice Ginsburg—this sparse footnote is momentous. In it, Justice Ginsburg was offering a thick and muscular reading of the Constitution that provides a road map for greater congressional protection for voting rights.

In footnote 2 of her Shelby County dissent, Justice Ginsburg was saying that we should read the Constitution synthetically as a message of expanding voting rights: for Black Americans, for women, for 18-21-year-olds, and for the poor. More than that: each time that the United States amended the constitution to expand voting rights, the amendment provided an “enforcement” section giving Congress the power to protect these new voting rights. As Congress passed the Nineteenth Amendment enfranchising women, for example, it specifically rejected a proposal to allow only states to enforce the amendment. The idea was that we need the national government to stop laggard states from discriminating in voting. That was true when Congress passed the Voting Rights Act in 1965, when it decided Shelby County in 2013, and today….

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