In his decision in Shelby, Chief Justice John G. Roberts Jr. claimed that even without a strong Section 4, the Voting Rights Act bans discrimination under Section 2, which “is permanent, applies nationwide, and is not at issue in this case.”
Permanent? Not if the 2-1 decision last week from the U.S. Court of Appeals for the 8th Circuit is allowed to stand.
The court’s majority arrogantly tossed aside what Congress explicitly said it was doing when it passed the law, claiming miraculous powers to read the “text and structure” of the act as preventing private parties, including civil rights groups, from bringing cases under Section 2. As the Atlantic’s Adam Serwer noted, the ruling’s claim that only the Justice Department had this authority ignored “Congress’s intentions, Supreme Court precedent and decades of practice.”
This is no minor bit of judicial activism. Rick Hasen, a law professor at UCLA, wrote on the Election Law Blog website that the ruling would eliminate the bulk of the cases aimed at protecting voting rights, since “the vast majority of claims to enforce section 2 of the Voting Rights Act are brought by private plaintiffs, not the Department of Justice with limited resources.” Bye bye, Voting Rights Act. Indeed, there were immediate signs (in a key Louisiana case, for example) that the 8th Circuit ruling would be used to overturn earlier voting rights actions…..
Preventing Trump from overthrowing liberal democracy is certainly a necessary step, but it’s not sufficient. Renewing the fight for a new Voting Rights Act and the access-enhancing reforms in the Freedom to Vote Act is essential. But it’s also time to address one of the major flaws of our Constitution: It does not contain an explicit, affirmative guarantee of every citizen’s right to vote. Enacting a constitutional amendment that would do so, Hasen argues, would bring our voting wars to an inclusive conclusion.
“Why do we let the state put barriers in front of people when they exercise their right to vote?” Hasen asked in an interview. The director of UCLA’s Safeguarding Democracy Project, Hasen details his proposed amendment and the case for it in a forthcoming book, “A Real Right to Vote.” A carefully framed amendment, he argues, could simultaneously protect voter access and assure election integrity. He’d link automatic voter registration with a nationwide, universal, nondiscriminatory form of voter identification.
Polarization makes amending the Constitution nearly impossible these days, one reason Hasen addresses fears on both the left and the right. But whatever chances Hasen’s amendment has, it calls on Americans to address the most important question facing our democracy: Are we truly committed to being a democracy? We’ll decide that at the ballot box next November, but we’ll have a lot more work to do even if we get the initial answer right.