Voting rights in America: A lunch with Justice Ginsburg

On September 9, 2013, I attended a luncheon held by the Lawyer’s Club of Chicago at the Union League, with Justice Ruth Bader Ginsburg as the invitee. It was fascinating to hear Justice Ginsburg speak about the recent United States Supreme Court term and its hotly-contested cases. Justice Ginsburg addressed several cases, such as the affirmative action and gender marriage cases. She spoke about the majority opinions and dissents, of which she wrote several. Justice Ginsburg ended her speech by focusing on one particular case, the Voter Rights Act (“VRA”) case of Shelby County, Alabama v. Holder, decided on June 25, 2013. In fact, of all of the cases addressed by Justice Ginsburg, she devoted the most time to the Shelby case, further underscoring its importance. Justice Ginsburg even read aloud portions of her dissenting opinion for the audience.

The VRA requires certain states that are covered by the statute to obtain federal preclearance before implementing any changes to their voting laws or practices. The VRA defines the covered jurisdictions through its “coverage formula.” In Shelby, the Supreme Court, in a 5-4 opinion, held that Section 4 of the Voting Rights Act, which defined the covered jurisdictions subject to additional restrictions under the VRA, was unconstitutional. Chief Justice Roberts, speaking for the majority, stated that the “coverage formula” used in the VRA and reauthorized by Congress in 2006 could no longer be used. The effect of this opinion is that several jurisdictions that were previously covered by Section 4 prohibitions on voting requirements are no longer under these prohibitions.

Upon reading the Shelby opinion, the sharp disagreement between the majority opinion and the dissent is evident. The crux of the disagreement focuses on the need to preserve the VRA’s remedy and the characterization of voting discrimination in the country. For example, the majority opinion repeatedly characterized the VRA as “extraordinary measures to address an extraordinary problem.” Justice Roberts posed the question of whether “the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements.” He then wrote that nearly “50 years later, things have changed dramatically…. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels. The tests and devices that blocked access to the ballot have been forbidden nationwide for over 40 years.” Justice Roberts even conceded that there “is no doubt that these improvements are in large part because of the [VRA].” Yet, Justice Roberts wrote that the VRA “has not eased the restrictions” or “narrowed the scope of the coverage formula” in any way. Finding the coverage formula in Section 4 obsolete, the majority held there is “no valid reason to insulate the coverage formula from review merely because it was previously enacted 40 years ago.” Accordingly, the majority struck down Section 4.

In contrast, Justice Ginsburg’s dissent started with the following: “In the Court’s view, the very success of [the VRA] demands its dormancy. Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated.” She then posed the question of who decides whether the need still exists: Congress or the courts. She concluded the former, and stated that these assessments “were well within Congress’ province to make and should elicit this Court’s unstinting approbation.” Justice Ginsburg walked through the history of the VRA, as well as examples of voter discrimination. Justice Ginsburg even invoked Dr. Martin Luther King in her dissent, by pointing out that Alabama (the petitioner) “is home to Selma, site of the ‘Bloody Sunday’ beatings of civil rights demonstrators that served as the catalyst for the VRA’s enactment. Justice Ginsburg wrote, “if the [VRA] passed, [Dr. King] foresaw, progress could be made even in Alabama, but there had to be a steadfast national commitment to see the task through to completion. In King’s words, ‘the arc of the moral universe is long, but it bends toward justice.’” At the luncheon, Justice Ginsburg read this sentence aloud with emphasis.

The need for the voting rights law is a hotly contested issue. One thing, however, cannot be disputed; the Shelby opinion has an impact on racial minorities and the law, and therefore is of supreme relevance to the ISBA’s Racial and Ethnic Minorities and the Law Committee. I believe that this Committee should, in the coming months, explore the topic of the voting rights law and the Shelby opinion. This exploration could take the form of a continuing legal education seminar, be in the format for website videos that the ISBA is currently promoting, or even be in other formats. It is a topic of undisputed importance as evidenced by the recent speech of one of the justices of the highest court in the land. I look forward to working with this Committee to further explore the voting rights law in the United States. ■