Block voting restrictions
Supreme Court should reconsider its 2013 precedent
In 2013, the U.S. Supreme Court effectively struck down parts of the Voting Rights Act of 1965 that required certain states, mostly in the South, to receive federal approval of voting changes before they went into effect. This “preclearance” procedure effectively blocked discriminatory voting restrictions before they had any effect.
The court reasoned that preclearance was no longer necessary, because “things have changed in the South.” Since then, Southern states have enacted a raft of voting restrictions, making a mockery of the ruling and proving that preclearance is still necessary.
Democrats in Congress attempted to enact a new law that would reinstate preclearance, but those efforts failed, with Senate Republicans successfully blocking the bill and leaving voting rights advocates desperate for a path forward.
Even absent congressional action, the Biden administration is not entirely without options. For one, the Department of Justice should simply ignore the Supreme Court’s 2013 decision and continue to enforce preclearance. This might sound radical, but it is not. It is no different from the strategy Mississippi recently pursued with respect to abortion, and the Supreme Court blessed it. The Biden administration should follow Mississippi’s lead with respect to voting rights.
Before the Supreme Court’s 2013 decision in the Shelby County v. Holder case, sections 4 and 5 of the Voting Rights Act together provided that, when a covered jurisdiction sought to enact a change to its election laws, the change would not have any effect unless and until it was approved by either the U.S. attorney general or a federal court in Washington, D.C. For decades, those federal authorities ensured that discriminatory changes to elections laws were nipped in the bud. But then the court decided in Shelby County that preclearance was no longer required, and previously covered Southern states could freely change their elections laws, which ushered in a raft of new voting restrictions.
However, contrary to popular understanding, the court in Shelby County did not erase any section of the Voting Rights Act from the statute books. In fact, it has no such power. As the court itself said in 1974, in Steffel v. Thompson, it “cannot make even an unconstitutional statute disappear.” Accordingly, the entire Voting Rights Act, including the preclearance provisions, remains “on the books.”
When the Supreme Court decides a federal statute is unconstitutional, the executive branch usually defers to the court’s judgment and declines to enforce it. But the Shelby County decision deserves no such deference. The court’s pronouncement that voting rights protections were no longer necessary because “things have changed” was audacious when the court made it in 2013, and it has proven demonstrably false since then.
The Department of Justice should demand the court reconsider Shelby County. It can do this by filing a lawsuit that seeks to enforce the preclearance requirement, in contradiction to the court’s prior judgment. That is, the Justice Department should sue a state that has recently enacted new discriminatory voting restrictions and ask a lower court to halt them since they never received preclearance. The lower court would almost certainly dismiss the case, since preclearance is no longer necessary, per the Supreme Court. That would set up the Justice Department to appeal to the Supreme Court, which would then have to decide whether to reaffirm Shelby County.
This, in essence, is the path Mississippi has taken with respect to abortion. The Supreme Court held decades ago in Roe v. Wade that women have a constitutional right to an abortion before the fetus has reached viability, but Mississippi never accepted that decision. Mississippi simply ignored the court’s judgment when it enacted a law that expressly banned certain previability abortions in clear contradiction to Roe. Abortion advocates challenged the law as unconstitutional under Supreme Court precedent and won, as expected, in a lower court. Mississippi appealed to the Supreme Court, and the court agreed to hear the case, Dobbs v. Jackson Women’s Health Organization, in order to reconsider whether, as the court previously held, pre-viability abortions are constitutionally protected.
In short, Mississippi ignored the court’s judgment in Roe and enacted a law in flagrant violation of it, and the court rewarded Mississippi’s defiance by agreeing to reconsider its precedent. No matter how the court ultimately rules, its decision to hear the case implies approval of Mississippi’s strategy.
The Biden administration should not miss the lesson. If the court is unbothered by defiance of its precedents and open to reconsidering them, why not Shelby County next?
To be sure, I am not optimistic that the court would actually overrule Shelby County. It probably would not. But whatever action the court may take, it would provide an important data point in the public’s understanding of the (often regretful) role the current court is playing in this era of democratic decline. This is especially important today, as potential reforms of the court continue to be a topic of considerable public interest.
The Biden administration should force the court to either recognize its error in striking down one of the most important voting rights protections in American history, or else put its woeful role clearly on display for all to see. If the court still thinks “things have changed” to such a degree that voting protections are no longer necessary, it should say so.