David Adler: Court disregards evidence in voting rights ruling

June 27, 2013 

David Adler

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The Supreme Court's ruling on the Voting Rights Act of 1965 scuttled protections that opened doors for black voters to participate in our democracy. Behind a thin veneer of reasoning that led the court to conclude that fundamental statutory protections against discrimination were no longer needed, the justices, in an extraordinary exercise in judicial activism, delivered a ruling that choked the progress in civil rights law and left minority voters at the mercy of the very Southern states that had been restrained by the landmark legislation.

In his opinion for the 5-4 majority, Chief Justice John Roberts observed that the historic practice of discrimination against minority voters by numerous states, principally in the South, had been largely terminated. As a consequence, he was prepared to terminate as unconstitutional the "preclearance" requirement in Section 4 of the Voting Rights Act that forced states, municipalities and other political subdivisions to seek prior approval from the U.S. Department of Justice before making changes in their voting processes.

Chief Justice Roberts' questionable calculus contradicted the conclusions of both Congress and the Justice Department that, indeed, "serious and widespread intentional discrimination persists in Southern states," which made a compelling argument for the continuation of the preclearance requirement. Congress in 2006 reauthorized the Voting Rights Act by an overwhelming majority - 390 to 33 in the House, and 98-0 in the Senate - that included representatives of the very states that were placed on the preclearance list. President George W. Bush signed the measure.

Continued acts of voter discrimination in the 2012 election cycle led the Justice Department to block requests by Texas and South Carolina to implement voter ID laws and to make changes in voting procedures. Since the court's ruling, news stories suggest that Texas is preparing to revive the programs that were denied by the Justice Department.

A fundamental question before the court in Shelby County v. Holder was whether Congress or the court should determine whether the collective data on the issue of the persistence of discrimination justified the continuation of the preclearance requirement. The court, historically, in the name of judicial restraint, practices deference to fact-finding judgments of Congress. In a word, courts take judicial notice of legislative facts or conclusions on the rationale that the countless hours of legislative investigations, hearings and testimony undertaken by Congress establish a reliable record.

The Supreme Court, in 1964, for example, upheld on the basis of a substantial legislative record a congressional prohibition on discrimination in places of public accommodation when it determined that discrimination against minorities had a substantial impact on interstate commerce. Since the court had not conducted its own hearings and investigations, it relied on congressional findings.

Critics of the ruling will justly question the frequent assertions of this court's claim to judicial modesty. The court's decision to exalt its judgment over and above that shared by both branches has significantly relaxed federal oversight of elections in states and municipalities that have a historical record of discrimination against minority voters. When Congress reauthorized the Voting Rights Act in 2006, it found, as Justice Ruth Bader Ginsburg wrote in her dissenting opinion in Shelby County, that "there were many barriers to minority voting rights." Those barriers "were shocking and they were recent."

The court's disregard of the remaining vestiges of the pervasive and insidious pattern of discrimination against minority voters dealt a severe blow to the right to vote, the most effective tool available to American citizens to bring remedies to flawed programs and policies.

Adler is the director of the Andrus Center for Public Policy at Boise State University, where he holds appointment as the Cecil D. Andrus professor of Public Affairs. He is also an adjunct professor of law at the University of Idaho, where he teaches courses on the Supreme Court and the Constitution. He has lectured nationally and internationally on the Constitution, the Presidency and the Bill of Rights.

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