Common Sense Jurisprudence

Voting Rights ActMedia accounts of decisions by SCOTUS concerning voting rights are often devoid of reference to the language of the statute under interpretation. Section 2 of the Voting Rights Act (VRA) of 1965 (subsequently amended in 1982 and 2006) seems, on its face, plain vanilla.

Subsection a. No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in subsection (b) of this section.

Subsection b.  A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its member have less opportunity than other members of the electorate to participate in the political process

In lay terms, the words mean “do not discriminate.”

Non-lawyers can apprehend these principles, applying common sense to their meaning. In lay terms, the words mean “do not discriminate.” Sometimes lawyers (such as this author) examine the words to discover and argue for interpretations that, on the surface, are inconsistent with common sense meanings. This phenomenon has been highlighted in recent years by public discourse about “originalism” and “textualism” as means to interpret statutes and constitutional principles by judges.

Since the 2020 election, public concern about state legislative proposals concerning voting restrictions has captured broad attention. Stepping back for a moment: one VRA provision requiring states to preclear proposals to alter or otherwise change voting procedures and processes was eliminated in 2013. Citizens of Shelby County, Alabama, sued Attorney General Eric Holder, arguing that sections of the 1965 VRA were no longer necessary because discrimination in voting was no longer a problem. In a 5-4 decision, the Supreme Court ruled in favor of the plaintiffs.

Chief Justice John Roberts stated the opinion of the court: “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”  That breach of common sense encourages present efforts to reign in relaxed voting requirements. Lawmakers in several states are, however, not fazed by the surviving language of the VRA, instead taking signals from the high court that restrictions are not only feasible but invited.

In effect, the majority concluded, some discrimination is acceptable, in contrast to the language of the VRA.

Recently, for example, the Court did not find two Arizona voting provisions in violation of the VRA (Brnovich v. DNC, June 2021). Justice Samuel Alito, writing for the 6-3 majority, concluded that the state’s interest in the integrity of elections justified the two measures, while rejecting the proposition that showing that a state law disproportionately affects minority voters is enough to prove a violation. Such burdens, Alito wrote, may inevitably result in “some” racial disparity. In effect, the majority concluded, some discrimination is acceptable, in contrast to the language of the VRA.

This analysis is contrary to that in Brown v. Board of Education, 1954, in which “separate” was deemed “unequal” by definition based, in part, upon empirical academic information. As in the Shelby County case, the Court’s conclusion in Brnovich has no independent foundation, only the opinion of the jurists. As Chief Justice John Roberts proclaimed, “Our country has changed” is sufficient to minimize voting discrimination. One critic noted that there’s not much evidence that expanded voting options have narrowed racial disparity, while experience suggests otherwise. The Court’s blind eye toward empirical experience indicates that new means to restrict voting access will not receive vigorous scrutiny in chambers.

The Court’s blind eye toward empirical experience indicates that new means to restrict voting access will not receive vigorous scrutiny in chambers…. Sadly, SCOTUS relies solely upon its perceptions of common sense jurisprudence even as a multitude of states openly discuss and enact legislation to thwart the principles of the VRA.

The burden on future voting activist plaintiffs will require strong statistical evidence demonstrating a measurable burden on VRA-protected classes. Sadly, SCOTUS relies solely upon its perceptions of common sense jurisprudence even as a multitude of states openly discuss and enact legislation to thwart the principles of the VRA.

Voting in recent elections has demonstrated an increasing rate of participation, part of which is attributable to enhanced procedures such as mail-in ballots and early voting periods. These relaxed procedures and processes have mostly benefited voters in urban and suburban areas trending toward Democrats.

SCOTUS’s legal reasoning in the cases cited allow for “some” racial disparity and deny the existence of racial animus (Shelby) in voting restrictions. Yet, only 67 years ago in Brown, the Court found by definition separate to be unequal. Now, however, it finds some racial disparity acceptable in the face of the VRA language that “no voting qualification or prerequisite shall be imposed … in a denial or abridgement of the right of any citizen … to vote.”  

Even if one accepts the general authority of states to establish qualifications and procedures for voting, abridgement of that right is forbidden. Tortured interpretations of statutory language in the service of originalism or textualism cannot escape the common sense reading of the VRA.

 



Categories: CIVIL RIGHTS, congress, Issues, National, politics, SCOTUS, VOTING RIGHTS

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