Op-Ed: SCOTUS Voting Rights Decision – An Attack on Democracy by Prof. Justin Hansford

Seven years ago, in 2006, I was a legal intern in the New York office of the NAACP Legal Defense Fund. A sense of civil rights history—past and present—pervaded the office. Its founder, Thurgood Marshall, had argued Brown v. Board of Education while working there. And I had arrived during a time when history was being made. The office was working to testify in support of the reauthorization of the Voting Rights Act. After a summer of hard work, one of my most cherished memories was the celebration we had when the United States Senate passed the reauthorization act by a vote of 98 to 0.

Seven years later, my heart is broken to see undone not only my own work and the work of my peers, but more profoundly the work of civil rights activists spanning generations. My thoughts today have lingered on those whose blood was spilled on U.S. Highway 80 in Selma, Alabama on March 7, 1965, a day that will always be remembered as “Bloody Sunday.” Eight days after the bloodshed, the President of the United States introduced the Voting Rights Act before a joint session of Congress, and in August it became law.

Today, unrealistic hopes of congressional intervention aside, the reality is that the VRA is no longer law. It’s painful to think about. The pain would be worse if I felt that it happened because we failed to amass a sufficiently thorough record in 2006, or that we lazily relied on “40 year old facts having no relation to the present day,” as asserted by the Chief Justice Roberts in the majority opinion. But my cognitive dissonance on this point could not be more acute. Justice Ruth Bader Ginsburg accurately noted in her dissent that the 2006 congressional record of 21 hearings and 15,000 pages belies Justice Roberts’ point. My own experience also belies the point. I remember long nights at the office, watching NAACP attorneys Debo Adegbile, Ted Shaw and others pour in heroic amounts of work, compiling evidence of contemporary cases of voter suppression persuasive to all but the most hardened.

In addition to being wrong on the facts, this decision was wrong on logic. As Justice Ginsburg argued, the Court perversely uses the Voting Rights Act’s own success as an argument against its survival, the ultimate Catch-22. If it had not been effective, it would have been thrown out. Since it was effective, the majority argues, it’s time to throw it out. As she observes, “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

My own pique and the weight of logic aside, this decision does damage to the Supreme Court as an institution. Shelby trampled any ideals of judicial restraint. To overturn a law passed so overwhelmingly by congress, on an issue—voting—where politicians clearly have legitimate expertise, on an expansive notion of state’s rights that would warm the heart of George Wallace himself, is disturbing enough. More disturbing is that the decision was reached along party lines, with the 5 republican appointees voting to overturn a law that disproportionally helps democratic candidates. Even more disturbing was Justice Scalia’s conjecture during oral argument that congress would never vote against a “minority entitlement,” leading us to suppose that the Supreme Court now feels qualified to judge the intentions of congress based only on a judge’s imagination. Most disturbingly, if history’s pattern holds, we can expect a deluge of Voter ID laws, limits on early voting, racial gerrymandering, and limited access to polling locations in minority communities around the country.

To be clear, the Supreme Court’s votes don’t come down strictly based on party lines in every case. However in major cases, many commentators have noted that particular Justices have certain causesthat inflame their passions and inspire their deepest held ideological commitments. Much has been made about Justice Roberts’ commitment to promote the well-being of corporations. Similarly, Justice Roberts has wanted to gut the voting rights act since his days as a lawyer working in Ronald Reagan’s Justice Department. This must be a sweet day for him.

People of color around the country, however, today was not so sweet. When considered in the wake of Citizen’s United, one could very well surmise that the Roberts era has reached its zenith, resulting in an attack on democracy rivaled only by Bush v. Gore.

Picture 4Professor Justin Hansford is an Assistant Professor of Law at Saint Louis University School of Law. HIs research incorporates legal history, legal ethics, critical race theory, human rights, and the Global Justice Movement in a broader attempt to interrogate injustice in society. Professor Hansford clerked for Judge Damon Keith on the United States Court of Appeals for the Sixth Circuit and was recently recognized by the National Bar Association as one of the Top 40 Lawyers Under 40.

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