The following op-ed by Harvard Law School Professor Lani Guinier, “No affirmative right to vote,” appeared on the New York Times blog, Room for Debate, on June 23, 2009. Guinier offered commentary on the Supreme Court’s ruling on the Voting Rights Act of 1965.
For now, the Voting Rights Act has survived the close scrutiny of a skeptical court and Section 5 remains mostly intact. Many in the civil rights community understandably are heaving a sigh of relief. Others applaud Chief Justice Roberts’s horsetrading ability because the opinion he wrote garnered the votes of justices on both sides of the aisle.
In an opinion demonstrating his legal artistry, Chief Justice Roberts acknowledges the “historic accomplishments” of the act and concedes that a country that held blacks in bondage for more than 250 years was able — because of the act — to elect a black man its president. But at the same time he issues a litany of complaints about the act’s potential unconstitutionality. Chief Justice Roberts spends much of the opinion reminding us of his “serious misgivings” about the constitutionality of Section 5 and notes the court’s duty as the bulwark “of a limited constitution against legislative encroachments.”
He warns of the “costs” of Section 5, and calculates the costs in the currency of federalism — a philosophy that says state’s rights are the master key to the arrangement of our democracy. What ultimately saves the act from his “serious misgivings” is the limited “institutional role” of the Supreme Court in reviewing statutes passed by its co-equal branch, Congress.
The opinion’s deeper message is actually quite disturbing. Chief Justice Roberts’s baseline commitment seems to privilege “state’s rights” over the rights of individuals to participate fully in their own democracy. While local control over the means of self-government might sound good in a civics textbook, it is troubling in the real world in which some states wave the Confederate flag on public grounds.
Justice Clarence Thomas’s separate opinion actually does a terrific job of recounting in graphic detail the reign of terror fomented by the Ku Klux Klan, with the behind-the-scenes cooperation of state officials in many southern states, a reign of terror that ensured blacks could not vote even a hundred years after the 13th Amendment banned slavery and the 15th Amendment disallowed discrimination in voting on the basis of race.
These same states continue to propose laws that inhibit poor people, especially poor people of color from exercising their right to vote. In reauthorizing the Voting Rights Act, Congress learned of more than a thousand examples of contemporary racial discrimination in voting in the states and localities covered by Section 5, including: reinstituting a Jim Crow-era system designed to make it more difficult for black people to register; relocating polling places so that blacks and Latinos would have to travel to remote or hostile venues in order to vote; cancelling elections or abolishing elected bodies at the moment that black or Latino candidates were on the verge of gaining a majority of seats on a governing body; using quotas in conducting annexations of unincorporated areas to prevent blacks from becoming a majority of the voting population; requiring Latino voters to attend citizenship hearings when their right to vote was challenged because they had a Spanish surname; and threatening students at a historically black college with prosecution if they registered to vote.
The question of whether Congress has power to reauthorize Section 5 is serious, but not close, given this sizable record and the court’s recognition of Congress’s power under the 15th Amendment to determine what legislation is needed to enforce the Constitution’s prohibition on racial discrimination in voting.
Relying on the 15th Amendment alone, however, is not enough to guarantee all Americans the constitutional right to vote. Unlike the First Amendment which guarantees the right to free speech, the 15th Amendment, like the 19th Amendment, protects citizens only in the negative: a state cannot deny or abridge the right to vote on the basis of race or sex.
This leaves one of the fundamental elements of democratic citizenship tethered to the whims of local officials. Rather than the rights of states vis-à-vis one another, the real question is why all American citizens do not enjoy an affirmative constitutionally protected right to vote. This is the question that we dodge at our collective peril.