Jeffrey Rosen NYT Book Review of Berman Voting Rights Book

It concludes with a note on race and party:

In 2014, the first election since 1965 without the preclearance protections of the Voting Rights Act, voters in 14 states faced new voting restrictions adopted by mostly Republican legislatures, including a voter identification law in Texas and cutbacks on same-day registration and early voting in North Carolina. The Supreme Court allowed both laws to go into effect, over dissents from Justice Ginsburg. But because the new voting restrictions were arguably adopted to help Republicans rather than harm ­African-Americans, the Supreme Court may continue to uphold them on the grounds that the Constitution does not prohibit hyperpartisanship by legislatures. Berman notes that “the number of voters potentially affected by new barriers to the ballot box exceeded the margin of victory in close races for Senate and governor in North Carolina, Kansas, Virginia and Florida, according to the Brennan Center for Justice.”

“Give Us the Ballot” is an engrossing narrative history rather than constitutional analysis. Berman does not explore why justices who are devoted to the original understanding of the Constitution have repeatedly voted to narrow the scope of the Voting Rights Act with the argument that the equal protection clause of the 14th Amendment is colorblind. (In fact, as Justice John M. Harlan observed in his 1964 dissent from one of the original Supreme Court decisions regarding “one man, one-vote,” the framers of the 14th Amendment believed that the equal protection clause did not regulate voting or apportionment at all.) Still, Berman vividly shows that the power to define the scope of voting rights in America has shifted from Congress to the courts, a result that would have surprised the Reconstruction-era framers.

Share this: