The Cato Institute and Constitutional Accountability Center don't always agree politically, but we both pride ourselves in following where the Constitution leads. Several years ago, that led us to argue together for the enforcement of the right to keep and bear arms against state laws. It leads us this week to file joint briefs in the landmark Supreme Court cases on marriage equality. For us, these cases aren't a matter of politics or ideology; they are a fight for the true meaning of one of America's most sacred constitutional rights.
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David Gans, the director of the Civil Rights Program at the liberal-leaning Constitutional Accountability Center, admitted that the “conservative bloc of the Court was skeptical about the Act,” but said there were “glimmers of hope” in Kennedy. “At points during the oral argument, Justice Kennedy asked questions suggesting that he appreciated the irony that Shelby County, with its robust recent record of racial discrimination, was challenging the Voting Rights Act,” Gans said. “He seemed to understand that the Federal government needs to continue to carefully monitor the voting rights practices of jurisdictions such as Shelby County. Hopefully that will lead him to uphold, rather than strike down, this iconic civil rights law.”
CAC President Doug Kendall joined Bill Press to discuss yesterday's oral argument in the conservative challenge to the Voting Rights Act in the case of Shelby County v. Holder.
On Thursday, thirteen states will also file briefs with the Supreme Court arguing that Prop 8 is unconstitutional. Fifteen will file briefs in opposition to DOMA on Friday. Other groups, like the libertarian Cato Institute and the liberal Constitutional Accountability Center have filed similar briefs this week in opposition to both laws.
The libertarian Cato Institute is pairing up with the left-leaning Constitutional Accountability Center to urge the Supreme Court to strike down both California's Proposition 8 ban on marriage between same-sex couples and the Defense of Marriage Act's federal ban on recognizing same-sex couples' marriages.
CAC's Elizabeth Wydra appeared on FOX News Channel's Special Report with Bret Baier to discuss the impending decision of the Obama administration to file briefs in the California marriage equality case, Hollingsworth v. Perry.
We begin with today’s Supreme Court arguments over striking down Section 5 of the 1965 Voting Rights Act that requires nine states with a history of discrimination to seek prior approval from the Justice Department to change their election laws. Elizabeth Wydra, Chief Counsel of the Constitutional Accountability Center, who frequently participates in Supreme Court litigation, joins us. We discuss early indications that Scalia and other conservatives on the court are itching to turn back the clock.
Predictions based on oral argument are a risky business, but after this morning it is fairly safe to say that the outcome of Shelby County will hinge on how the Justices answer the question Justice Elena Kagan asked toward the end of argument: who gets to decide when the problem of racial discrimination in voting is solved? Because I think most Americans would recognize the reality that voting discrimination is still a problem, I would rephrase slightly: who gets to decide how best to go about solving the problem of voting discrimination? As Solicitor General Don Verrilli repeatedly emphasized this morning, the Constitution expressly grants Congress the power to enforce the constitutional guarantee of the right to vote free from racial discrimination. Not the courts. Not Shelby County, Alabama, of all places. Not even Justice Kennedy.
Just hours before the unveiling of a new Rosa Parks statue at the U.S. Capitol , civil rights pioneers young and old convened on the steps of the Supreme Court to demonstrate for the importance of Section 5 of the Voting Rights Act of 1965.
Section 5 requires certain states and jurisdictions to have any change in voting procedures approved by the federal government. Sparking outrage from protestors was Justice Antonin Scalia’s comment calling Section 5 ” the perpetuation of a racial entitlement.”
Shelby County should be an easy case. The Constitution's text expressly gives to Congress the power to enforce the Constitution's prohibition against racial discrimination in voting, arming Congress with substantial power to ensure that our most precious fundamental right is enjoyed by all Americans regardless of race. The Supreme Court has repeatedly upheld this very act, and the record developed by Congress shows that racial discrimination in voting is still a blot on our Constitution's promise of voting equality. The question now, as the justices hear oral argument, is whether the Roberts Court will follow the Constitution or subvert it.
Still, defenders of Section 5 note that the primary question before the court today is about Congress' decision to reauthorize the Act in 2006. That decision wasn't made lightly -- Congress considered a hefty load of evidence on the Voting Rights Act before voting and held multiple hearings on the issue. "It's not the court's job under the Constitution to second-guess Congress' policymaking decision," [CAC Chief Counsel Elizabeth] Wydra said.
For interested observers, like Elizabeth Wydra, an attorney with the progressive Constitutional Accountability Center who filed a brief in support of the provision, Roberts' comments were particularly striking. "Given the skepticism that Roberts expressed, he certainly is one to watch in terms of striking down the preclearance provision," she said. With Justice Anthony Kennedy, the court's most regular swing vote, having also stated some concerns during the argument in the 2009 case, lawyers on both sides will also be keeping a close eye on him, Wydra added.