The Supreme Court Backs Away From a Huge Constitutional Blunder in NAMUDNO

by David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center Yesterday, the Supreme Court issued its much-anticipated opinion in NAMUDNO v. Holder, holding that the plaintiff, a small Texas utility district, should have a chance to prove that it is entitled to an exemption – in technical parlance, a “bail out” – from the preclearance requirement of the Voting Rights Act of 1965. The Court’s opinion, written by Chief Justice Roberts and signed by every Justice except Justice Thomas, declined to decide the plaintiff’s constitutional challenge to Congress’ 2006 decision to renew the preclearance provision, one of the most important and successful provisions of the Voting Rights Act. This is an incredible turnaround – during oral argument in April, the Court’s conservatives all seemed poised to declare that the preclearance provision exceeded Congress’ power under the Fourteenth and Fifteenth Amendments. Faced with the prospect of invalidating one of our nation’s most important and iconic civil rights laws – renewed in 2006 with overwhelming support across the political spectrum – the Supreme Court backed one step away from a very steep cliff. Only Justice Thomas argued that the preclearance provision is unconstitutional. We should all breathe a sigh of relief that the Voting Rights Act is still intact. Although the Court did not reach the constitutional questions in yesterday’s opinion, the Chief Justice’s opinion invites future litigants to renew the constitutional attack on the Voting Rights Act, describing the Act’s preclearance requirement as in tension with principles of constitutional federalism and claiming that it may have run its course, citing “considerable evidence that it fails to account for current political realities.” This is hardly an opinion faithful to the text and history of the Civil War Amendments, which were enacted to change the Constitution’s balance of powers between the federal government and the States, and give Congress the lead role in securing the new constitutional guarantees of liberty, equality, and the right to vote. Thus, although the Voting Rights Act dodged a bullet today, the threat to the Act, and to fundamental constitutional principles, is still at code red.Emblematic of the Court’s appreciation of the text and history of the Civil War Amendments is its discussion of Reconstruction and its aftermath. In the Court’s eyes, Congress failed to take up its constitutional duty to enforce properly the Fifteenth Amendment’s guarantee of the right to vote. In Chief Justice Roberts’ words, “[t]he first century of congressional enforcement of the Amendment can only be regarded as a failure. Early enforcement acts were inconsistently applied and repealed with the rise of Jim Crow.” The truth is that much of the blame goes to the Supreme Court. It was the Court that sapped Congress’ enforcement powers under the Civil War Amendments, ensuring that the new constitutional guarantees would not actually be enjoyed by the newly freed slaves and other Americans. For example, in the 1876 case of United States v. Reese, the Court adopted a tortured construction of the Enforcement Act of 1870 – Congress’ first exercise of its Fifteenth Amendment enforcement powers – to justify holding the Act unconstitutional. Reese dismissed a prosecution of Kentucky election inspectors who refused to count the votes of African American voters – a blatant violation of the Fifteenth Amendment – because the Court thought the Act could also apply to vote denials that had nothing to do with racial discrimination. As Judge Michael McConnell has written of Reese, “the reasoning was transparently faulty and the practical effect was to undo a major underpinning of Reconstruction.” Other decisions of the era made it impossible to protect African Americans and their allies against the campaign of terror waged by the Klu Klux Klan, who turned to violence and intimidation to prevent African Americans and their allies from voting. As we show in our recent report, The Shield of National Protection, in the 1870s and 1880s, the Supreme Court held that Congress had no power to protect the constitutional rights of the freedmen against “private” action. These rulings effectively gave the green light to groups like the Klu Klux Klan to terrorize African Americans to make sure they did not vote. As The Shield demonstrates, the framers of the Civil War Amendments gave Congress the lead role in securing the new constitutional guarantees of liberty, equality, and the right to vote because it did not trust the Supreme Court – so soon after its abominable ruling in the Dred Scott case – to properly enforce the new constitutional Amendments. This was a prophetic judgment – since then, the Supreme Court has, all too often, stood in the way of Congress’ enforcement of the Constitution’s guarantees. Should the Voting Rights Act return to the Supreme Court, let’s hope the Supreme Court learns these lessons, and respects Congress’ express constitutional power to secure the right to vote. Unfortunately, the Court’s failure in NAMUDNO to even acknowledge its own role in undermining Congress’ efforts to enforce the right to vote in the Reconstruction era provides little basis for optimism.