In 2006, Congress renewed a provision of the 1964 Voting Rights Act that the United States Supreme Court has struck down. In effect, the judiciary is second guessing Congress under cover of what amounts to a states rights argument. Of course, in political discourse, both “states rights” and “judicial activism” are applied so selectively that they mostly boil down to “stuff I like” and “stuff I don’t like.”
Lyle Denniston, legal analyst for SCOTUSblog breaks down the opinion here. The opinion is Shelby County (Alabama) v. Holder. One of the main issues was section 4 of the act which provided a coverage formula that subjected certain areas of the country – mostly the old Confederacy – to special restrictions given the historical prevalence of racist voter discrimination. In 2006, the U.S. Congress renewed that formula for another 25 years.
Certain states have to get pre-clearance from the federal government before they can change voting procedures. The Supreme Court, in today’s decision, complained that this is unfair because it deprives these states of equal sovereignty under . . . well, these strict constructionists don’t cite anything. But, let’s say that this was the default setting under the Constitution. It’s not an unreasonable declaration — even if it might come out of a penumbra of some sort.
But, the thing is, all of the covered states are south of the Mason-Dixon line. There was an incident, well known in some historical circles, where Southern states committed treason against the United States in pursuit of their state’s rights to allow some individuals to own other individuals. After their rebellion was put down, these states spent the better part of a century imposing Jim Crow laws. Slavery and Jim Crow laws were prevalent in these areas for approximately 450 years. The Voting Rights Act is about 50 years old, and, in 2006, Congress made a determination that a formula that covered a number of Confederate States was still appropriate. The arbiter of facts and credibility in a judicial situation – the District Court – agreed. Apparently reweighing the facts, substituting its own judgment for that of Congress and the District Court, the Supreme Court has determined that section 4 is unconstitutional — based on what Constitutional provision, I remain uncertain.
The Supreme Court has used its notion of “equal sovereignty” to substitute its judgment for that of Congress. It is difficult to square that with a stated preference for judicial restraint; particularly when one considers that the Supreme Court’s main complaint is that Congress is using decades old data to combat a centuries old problem.