By David H. Gans, Director of the Human Rights, Civil Rights & Citizenship Program

The Fifteenth Amendment prohibits racial discrimination in voting and expressly empowers Congress to enforce this guarantee, which it has done primarily through the passage and repeated reauthorization of the Voting Rights Act.  Recent events only bolster Congress’ repeated invocation of its express constitutional power to protect the right to vote free from racial discrimination.    

In Shelby County v. Holder, an Alabama county, joined by a host of conservative states, including Alabama, Georgia, Texas and South Carolina, and right-leaning legal groups as amici curiae, are urging the Supreme Court to review the case and strike down a key part of the Voting Rights Act as beyond the scope of Congress’ power to enforce the Fifteenth Amendment’s prohibition on racial discrimination in voting.  The core of the conservative attack on the “preclearance” requirement of Section 5 of the Voting Rights Act (which requires jurisdictions that have a history of engaging in racial discrimination in voting to obtain federal permission before altering their voting laws and regulations) is that this strong medicine is now outdated and unnecessary.   In reauthorizing the Act in 2006, Congress disagreed, amassing a 15,000-page legislative record demonstrating that racial discrimination in voting continues to exist and remains concentrated in jurisdictions covered by the Voting Rights Act’s preclearance requirement. 

In the last few weeks, in a trio of unanimous rulings by three separate three-judge District Courts in Washington D.C., judges across the ideological spectrum have unanimously applied the Voting Rights Act’s preclearance provision to strike down new voting measures designed to suppress the vote and dilute the voting power of racial minorities, concluding that these voting changes would cut back on minority voting rights.  These rulings provide critical new evidence of precisely why preclearance is still a much needed tool to protect the right to vote free from racial discrimination.   Without the Voting Rights Act in place, African American and Hispanic voters in states such as Texas might be denied their constitutional right to cast a ballot on election day.   

On August 30, in Texas v. Holder, a three-judge court unanimously blocked Texas’ new voter identification statute, the most stringent in the nation, finding that the statute would inevitably disenfranchise low-income Texas citizens, who are disproportionately African American and Hispanic.  The court explained that, unlike Indiana, whose voter identification law was upheld by the Supreme Court in 2008, Texas had gone to great lengths to suppress the vote in poor and minority communities, strictly limiting the types of photo identifications available – a license to carry a concealed firearm is a valid ID under the law, but not a student or Medicare ID card – and making it costly to obtain a so-called “free” election ID for use at the polls.  For those without one of the five permitted photo identifications, the court found that the law was tantamount to a poll tax, “imposing an implicit fee for the privilege of casting a ballot.”  The “very point” of the Voting Rights Act, the court explained, was to deny “states an end-run around the Fifteenth Amendment’s prohibition on racial discrimination in voting.” 

Likewise, on August 16, in Florida v. United States, three other judges  unanimously held that Florida could not slash the period for early voting, explaining that “a dramatic reduction in the form of voting that is disproportionately used by African Americans would make it materially more difficult for some minority voters to cast a ballot . . . .”  Florida’s reduction in early voting, the court explained, was akin to “closing polling places in disproportionately African-American precincts.”  Noting that Congress enacted the Voting Rights Act to enforce the Fifteenth Amendment and “provide robust and meaningful protections for minority voting rights,” the court held that Florida could not suppress the vote through a significant reduction in the hours of early voting.   

On August 28, in Texas v. United States, in a yet another unanimous ruling, another three-judge court held that Texas’ new state legislative and congressional districts could not be squared with the Voting Rights Act, finding that new congressional, state senate and state house district lines had either the purpose or effect of diluting minority voting strength.  Importantly, because the court’s opinion, authored by George W. Bush appointee Judge Thomas Griffith, held that Texas had purposefully discriminated on account of race in both the congressional and state senate plans, Texas’ districting was both a violation of the Voting Rights Act and the Constitution.   

These cases, along with Shelby County, tee up a fundamental question of federal power – does the Constitution give the federal government the power to continue in force one of the core parts of the Voting Rights Act – the preclearance requirement – which has been instrumental in ending numerous acts of racial discrimination in voting and guaranteeing access to the political process for millions of American citizens.  The Constitution’s text and history answer this question.  The text of the Constitution specifically empowers the federal government to secure the right to vote free of racial discrimination “by appropriate legislation,” giving Congress broad power to eliminate the scourge of racial discrimination in voting.   And history shows that the Framers of the Fifteenth Amendment wrote this enforcement language to give Congress the authority – no less sweeping than Congress’ other expressly enumerated powers – to ensure that the right to vote is enjoyed by all citizens regardless of race. 

The evidence of racial discrimination in voting from these three most recent cases, added to the massive record amassed in 2006 when lopsided bipartisan majorities of 98-0 in the Senate and 390-33 in the House voted to renew the Voting Rights Act, establishes the constitutionality of the 2006 reauthorization of the Voting Rights Act.  If the Supreme Court grants review in Shelby County, it should hold that the 2006 renewal of the preclearance requirement falls squarely within Congress’ express power to enforce the Fifteenth Amendment’s prohibition on racial discrimination in voting.