There are two arguments about the Supreme Court ruling on the Voting Rights Act making their way around on the left which are legally and factually unsound. Hysteria is their prerogative, but making up facts and law are not.


Former Justice John Paul Stevens (J. Scott Applewhite/Associated Press)

The first strain of complaint argues that Congress decided this issue when it renewed the Voting Right Act in 1982 and in 2006, so the Supreme Court should have deferred to that. This stands civil rights law on its head. The Constitution, as interpreted by the courts, is the last word on the 14th Amendment, the 10th Amendment and all other constitutional provisions at issue in this or any other case. That has been the basis for protection of minority rights. The majority in Congress don’t decide what is constitutional.

The second argument is almost as daft. It goes like this: Because the Supreme Court said that the Section 4 criteria, which are applied to preclearance states in Section 5 of the Voting Rights Act, is unconstitutional, voter identification laws are now beyond challenge. I wish. But this is wrong for multiple reasons.

First, the Supreme Court has already found that voter ID laws can be perfectly constitutional. As multiple lawyers pointed out to me after the ruling yesterday, in an opinion by liberal Justice John Paul Stevens in 2008 the court upheld Indiana’s voter ID law against a 14th Amendment challenge, finding that it was entitled to guard against fraud and those challenging the law had failed to come up with anyone unable to get an ID card. In short, voter identification was held to be constitutional long before Section 4 was struck down.

The left’s argument is particularly specious in this case since the court in essence warned Congress to fix the problems inherent in Sections 4 and 5. As the chief justice wrote, the court held in Northwest Austin “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” Congress did not fix what the court plainly indicated was problematic. The court’s ruling can be no surprise to those who refused to take seriously Northwest Austin:

Congress — if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past. We made that clear in Northwest Austin, and we make it clear again today . . .  .[I]n issuing that decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.

Second, as a Supreme Court litigator e-mailed me, “lacking a rational basis for singling some states out for DOJ preclearance” — which is what the court did — doesn’t settle voter ID issues. Section 4 fell because the court held that Congress lacked the constitutional authority – when they were using data more than 40 years old – to uproot states’ right to run elections. Congress can under Section 5 of the 14th Amendment or of the 15th Amendment draft legislation to protect equal protection of the laws, but it has to have a defensible basis for doing so.

Voter ID laws can still be challenged in court under Section 2 of the Voting Rights Act or the 14th or 15th Amendments of the Constitution. That was true before the ruling yesterday, and it is true today. Former Justice Department attorney John Yoo calls the liberals’ accusation “a willful misreading of the case.” He explains, “A challenge to voter ID, or any other kind of voting rights measure, can still be brought under Section 2 of the Act.  Section 2 prohibits any individual electoral standard, practice, or measure that discriminates on the basis of race. The Court clearly says that Section 2 is not affected by its holding, which only goes to the extraordinary mechanism of requiring states to receive federal pre-clearance before changing their electoral laws.”

So what is going on here? Another former Justice Department lawyer told me that what the left “is in hysterics about” is that if Congress doesn’t come up with an acceptable new criteria for Section 4 under the Voting Rights Act (and thereby reactivates Section 5 of the act) plaintiffs can no longer rely on highly politicized voting rights attorneys in the Justice Department  “who can shake states down behind closed doors and with no Freedom of Information Act records or public accountability.” He explained: “In other words, they are going to have to actually prove their cases before a federal judge.” They have to make their case in court. The horror of it!

If you think the Justice hasn’t abused its authority under Section 5 of the Voting Rights Act consider the case involving former Alabama state attorney general Bill Pryor. Section 5 lawyers in 2001 demanded Pryor stop enforcing a state law that required DNA samples from prisoners as a condition for parole and for potential restoration of voting rights thereafter. The DNA sample program was actually funded by the Justice Department. Pryor refused to submit to the threatening letters from the voting section and the DOJ backed off. Many preclearance states have cowered and submitted to such attempts at overreach for fear of being labeled as voting discriminators. Now, a law like that can be challenged, but in court where virtually any competent judge would have granted a state’s motion to dismiss.

So yesterday’s decision, alas, does not settle or very much impact voter ID litigation. In states never requiring preclearance, those fights will still go on, although the Supreme Court case precedent is strong in favor of voting ID laws. For states that were covered by preclearance, the Supreme Court’s 2008 case suggests challengers have an uphill climb, but  those laws can still be challenged in court under multiple legal theories. What can’t be done in voter ID and other cases is hold states which discriminated decades ago to a different standard, and thereby allows bullying behind closed doors by the Justice Department. That is what the left wants to defend — in perpetuity. The desire to punish permanently a segment of the country for conduct of residents’ decades ago is itself invidious discrimination, something the Constitution does not allow.

Jennifer Rubin writes the Right Turn blog for The Post, offering reported opinion from a conservative perspective.