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A Radical Act of Judicial Activism

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Gerry Hebert

The Supreme Court’s 5-4 decision in Shelby County v. Holder, struck down core provisions of the Voting Rights Act. The Court declared Section 4 of the Voting Rights Act unconstitutional, invalidating the coverage formula that determines which jurisdictions must seek federal approval of their voting changes under the Act. This decision is a major setback for voting rights and will have a real, detrimental impact on voters.

Without federal oversight of voting changes in the covered states, the cause of racial equality and effective participation by minority voters in our democracy is harmed in four ways:

First, minority voters will not be informed of voting changes occurring in their community, as they were until the Shelby County decision. Second, the Shelby County decision means that changes in voting procedures will take effect immediately, without any review of whether those proposed changes harm minority voters. Third, minority voters now will bear the heavy burdens of time and expense of litigating to stop racially discriminatory voting procedures. Fourth, the preclearance provisions have a clear legal standard (retrogression) that was easily understood by state and local governments. That clear legal standard will no longer be applied to covered states and political subdivisions as a result of the Shelby County decision.

The Court’s decision is also a radical act of judicial activism. It is a slap in the face to the congressional authority to enact legislation to enforce the post-Civil War Reconstruction Amendments to the Constitution. As Justice Ginsburg correctly observed in her dissent in the Shelby County case, “It is well established that Congress’ judgment regarding exercise of its power to enforce the Fourteenth and Fifteenth Amendments warrants substantial deference.” The Court failed to afford Congress this “well-established” deference. To illustrate how extreme the decision in Shelby County is, it is worth noting that not since 1883 has the U.S. Supreme Court struck down an act of Congress that was passed to enforce these Amendments.

In its Shelby County ruling, the Court not only cast aside decades of legal precedents, but it also usurped Congress’s role of enforcing those Amendments “by appropriate legislation.” The Court’s decision in the Shelby County case overrode Congress’ decision that the special provisions of the Voting Rights Act were still needed in the covered jurisdictions, substituting its decision for the considered views of Congress that voting discrimination remains particularly acute in the covered areas. Decisions like Shelby County do great harm to the Court as an institution and the traditional respect for the Bench.

Congress should act in a bipartisan manner to update the coverage formula to determine what jurisdictions will be covered by Section 5 and ensure that voters will continue to be protected from the evils of discrimination.

J. Gerald Hebert (“Gerry”) is a sole practitioner in Alexandria, Virginia, who specializes in election law and redistricting. His legal practice is national in scope. He is also currently the Executive Director and Director of Litigation at the Campaign Legal Center, in Washington, D.C.

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