The prestigious, if generally liberal, editorial board of the New Jersey Law Journal has called on the state's Congressional delegation to take up the suggestions of Republican leaders. Eric Cantor and James Sensenbrenner that they say they will act to blunt the effect of Shelby County, Alabama v. United States. The "stunning" Supreme Court ruling declares unconstitutional the key provision of the Voting Rights Act that bars electoral changes in the states of the former confederacy unless the federal government clears the change. - GWC
A Way Forward on Voting Rights - NJ Law Journal Editorial Board
For those who remember the injured marchers in Selma, the bloodied faces of John Lewis and others from the Student Nonviolent Coordinating Committee, Fannie Lou Hamer and the Mississippi Freedom Democratic Party, the Voting Rights Act is seen as scripture: untouchable. That the Supreme Court has stricken a part of it provokes powerful feelings of dismay.
Shelby County v. Holder is a stunning decision. In striking §4 of the Voting Rights Act of 1965, Chief Justice John Roberts Jr. introduced a new idea: that Congress must adjust its remedies to "current conditions" or face the terrible swift sword of constitutional review. A chief justice who began his tenure by pledging a jurisprudence of umpiring balls and strikes has changed the rules.
Deploring the motives of the justices is unproductive and unwarranted. They doubtless are convinced of the correctness of their conclusions. The chief justice certainly spoke plainly enough. Whether we agree with him that the court moved carefully, necessarily and reluctantly, or with Justice Ruth Bader Ginsburg, who saw hubris, we must ask what to do now.
Equally unproductive would be to despair that the court's invitation to Congress to devise a new formula is an unachievable dead end barred by the present partisan divide. The need to act is plain. Immediately following the decision, Texas Attorney General Greg Abbott, freed of §4's preclearance requirement, announced that he would immediately implement the state's rigorous voter-identification law, SB 14. Last year Texas, denied preclearance by the U.S. attorney general, sought a declaratory judgment that its law was not discriminatory. The Court of Appeals for the District of Columbia denied the relief, saying "Section 5 prohibits covered states from implementing voting laws that will have a retrogressive effect on racial minorities. Texas, seeking to implement its voter ID law, bears the burden of proof and must therefore show that SB 14 lacks retrogressive effect. But as we have found, everything Texas has submitted as affirmative evidence is unpersuasive, invalid, or both."
The U.S. now faces the burden of litigation to stop Texas from implementing a voter ID that the D.C. Circuit found to be of dubious legality. Revision of §4 could prevent the balance of the Voting Rights Act from creating a mass of costly, contentious litigation between federal and state governments. Fortunately, the overwhelming congressional consensus that passed the revised, now stricken Voting Rights Act in 2006 may not be a corpse.
We are encouraged by the declaration of Minority Leader Eric Cantor, R-Va., that he was moved by the time he spent with Rep. John Lewis and that he is "hopeful Congress will put politics aside, as we did on that trip, and find a responsible path forward that ensures that the sacred obligation of voting in this country remains protected." In a similar vein James Sensenbrenner, R-Wis., declared, "The Voting Rights Act is vital to America's commitment to never again permit racial prejudices in the electoral process. Section 5 of the Act was a bipartisan effort to rectify past injustices and ensure minorities' ability to participate in elections, but the threat of discrimination still exists. I am disappointed by the Court's ruling, but my colleagues and I will work in a bipartisan fashion to update Section 4 to ensure Section 5 can be properly implemented to protect voting rights, especially for minorities."
We urge our congressional delegation not to despair and to work to move forward with determination to make a reality the bipartisanship of which Cantor and Sensenbrenner speak.