With respect to civil rights, this term at the Supreme Court has the pall of a funeral. Advocates and supporters of civil rights are grimly preparing for what is likely to be a series of (hopefully) narrow losses from Affirmative Action to Voting Rights.
The Supreme Court is poised to decide the fate of Voting Rights in the United States in the case of Shelby v. Holder. At issue is the preclearance provision (Section 5), which requires federal preclearance for any change in voting rules in covered jurisdictions. Not only has this provision been upheld multiple times by the Supreme Court, but Congress has re-authorized this provision on multiple occasions as well, extending it farther into the future. The latest reauthorization was signed by President Bush in 2006.
The petitioner, Shelby County, Alabama now argues that the formula used to determine coverage under Section 5, which was originally devised based upon data in 1964, although reauthorized by Congress in 2006, is no longer relevant, and therefore an unfair and unjustifiable introduction into federalism and state sovereignty.
Shelby County is appealing to a concern, described by Chief Justice Roberts, that the coverage formula violates the principle of “equal state sovereignty.” In the last Voting Rights Act case, the Chief Justice Roberts laid the groundwork for declaiming section 5 as unconstitutional on this ground, but avoiding reaching the Constitutional issue. In Northwest Austin Municipal Utility Dist. No 1. v. Holder, not only did the Chief Justice intimate that the Voting Rights Act might extend beyond Congressional authority under the 14th Amendment, but that it violates some more general principle of federalism that is perhaps rooted in the Tenth Amendment as much as the Fourteenth.
Indeed, what is so puzzling about this notion of salience of the states’ rights discourse in this case is how concerns rooted in state sovereignty fly in the face of the obvious purposes of the Reconstruction Amendments. The Reconstruction Amendments were specifically passed to abrogate states’ rights and constrain state behavior after long experience in which black Americans were systematically subjugated by those states. Moreover, even if Tenth Amendment federalism concerns were constitutionally relevant, they would be superseded in this case by the Fourteenth Amendment, which was passed later in time.
Shelby County v. Holder not only brings into focus the issue of the proper scope of Congressional power under the Fourteenth Amendment, it also seeks to examine how to balance that authority against states’ rights. Given the language, text and history of the Fourteenth Amendment, the issue of states’ rights in this context is irrelevant. Unfortunately, this Court seems to believe otherwise.
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