The 2008 Election and the Voting Rights Act

Next month, the Supreme Court will hear oral argument in one of the most significant cases of this term, Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO), in which a tiny utility district in Texas is challenging Congress’s 2006 decision to reauthorize the critical “pre-clearance” provision of the Voting Rights Act of 1965, one of our country’s most important civil rights laws. The pre-clearance provision requires certain jurisdictions that have a history of engaging in racial discrimination in voting to obtain federal permission before altering their voting procedures.

Although some have argued in NAMUDNO that the election of this country’s first African American president is evidence that the Voting Rights Act is no longer needed, that is the wrong lesson from Barack Obama’s election. Briefing before the Court has exposed enormous racial discrepancies in voting patterns between southern states widely affected by pre-clearance, and the rest of the country, during the last presidential race, revealing that “the results of the 2008 election do not indicate any substantial disruption in historical or geographic patterns of race and political preference.” Rather, the election has put Barack Obama in the position to help lead the revitalization of the post-Civil War Reconstruction Amendments (the Thirteenth, Fourteenth, and Fifteenth Amendments) that guaranteed liberty and equality, and that made it possible for Obama to hold the office he does today. NAMUDNO is an important opportunity for the Supreme Court to reevaluate, and indeed correct, its interpretation of these Amendments, which provide the constitutional authority for Congress’s enactment and extension of the Voting Rights Act.

That is why Constitutional Accountability Center (CAC) has today filed an amicus brief with the Supreme Court in the NAMUDNO case supporting the Obama Administration and a coalition of civil rights organizations seeking to uphold Congress’s 2006 reauthorization of the Act, which speaks directly to the question being considered by the Court: “whether Congress acted within the scope of its enforcement powers under the Fourteenth and Fifteenth Amendments when it reauthorized [the pre-clearance provision] of the Voting Rights Act in 2006.” Our brief reveals that the text and history of the Reconstruction Amendments—the Thirteenth Amendment’s prohibition of slavery, the Fourteenth Amendment’s protection of equality and liberty, and the Fifteenth Amendment’s guarantee of the right to vote—show that these Amendments were intended to provide Congress with the tools to effectively protect fundamental rights, including the right to vote secured by Congress’s extension of the Voting Rights Act.

As the brief demonstrates, the Reconstruction Framers made their intent to vest Congress with broad power to enact “appropriate legislation” abundantly clear in the floor debates over the Fourteenth Amendment. They also explicitly gave Congress enforcement powers in each of the Reconstruction Amendments, endowing the most representative branch of government with the power to determine what legislation is needed to uphold the Constitution.

Our NAMUDNO brief previews our forthcoming “text and history” narrative concerning the enforcement powers of Congress, which follows on the heels of CAC’s widely-acclaimed first narrative, The Gem of the Constitution. Together these narratives reveal how the plain text and clear history of the Reconstruction Amendments are too often ignored by the Supreme Court, including by those justices who purport to follow the Constitution’s original meaning.

In filing our brief, it is our hope that the Court heeds this progressive history of the Constitution and upholds Congress’s constitutional power to protect all Americans from discrimination. In light of this clear text and powerful history, a ruling by the Supreme Court striking down Congress’s reauthorization of pre-clearance would be the very definition of judicial activism and a profoundly wrong interpretation of the 2008 election.