Monday, 24 November 2014 / TRUTH-OUT.ORG

Deception and Error: The Supreme Court's Wrong Decision on Voting Rights

Thursday, 11 July 2013 13:13 By Dan Riker, SpeakOut | News Analysis

 Chief Justice John Roberts deceptively altered an earlier Supreme Court decision, misapplied another, and erroneous described the Tenth Amendment in writing the majority opinion that ruled the key section of the Voting Rights Act unconstitutional. What he did generally has gone unnoticed in the subsequent articles that have been published about the decision. This article provides a detailed analysis of what he did, and why that makes his decision legally and constitutionally wrong. However, the Court did not take away another provision that gives the Act some significant enforcement power.

In ruling the key provision of the Voting Rights Act unconstitutional, Chief Justice John Roberts, writing for the 5-4 Supreme Court majority in Shelby County v Holder 579 US __, also attempted to reanimate right wing ideas that courts long ago extinguished. In so doing he employed a line of reasoning that was deceptive and erroneous. Associate Justice Ruth Bader Ginsberg, in a lengthy and biting dissent, described his approach as an exercise of “hubris,” potentially “capable of much mischief.”

Indeed, the five member conservative majority of this Court already is engaged in judicial mischief. This Court has become one of the most aggressive in history in its assertion of its judgment in place of that of Congress. It may have less respect for the democratic political process than any previous modern Court. It is the only Supreme Court in history that does not have a single justice with experience in public office. It has abandoned some of the Court's most established historical practices such as giving Congressional acts a presumption of constitutionality. More frequently than any modern Court it substitutes its determination of facts for those of Congress, or simply ignores Congressional fact-finding and determinations. It certainly did that in Shelby.

The majority of this Supreme Court seems determined to undo virtually the entire New Deal and Great Society programs that expanded political freedom and economic security for the vast majority of Americans through expansive federal power. The conservative majority seems intent on reducing the scope and powers of the federal government, and expanding those of the states. This is being accomplished by narrowing the scope of the Commerce Clause that historically has been the basis of many federal actions and programs, redefining the meaning of “appropriate legislation” in the 14th and 15th Amendment delegations of power to Congress to enact legislation to enforce their provisions, and in attempting to create a new doctrine of equality of state sovereignty that has no basis in prior decisions, law, or the Constitution. In Shelby, Chief Justice Roberts also erroneously described and misapplied the Tenth Amendment, which extreme right wing, libertarian, and neo-Confederate groups are attempting to resuscitate to nullify federal laws and Supreme Court decisions.

The mind set of the Chief Justice and his conservative allies on the Court is best summarized by two sentences Roberts wrote in his Affordable Care Act decision last year when the Court upheld the Act as a tax, but eliminated the requirement that states accept the expansion of Medicaid or lose their existing Medicaid federal funding. He wrote, “The states are separate and independent sovereigns. Sometimes they must act like it.” That statement would be a great shock to James Madison, Alexander Hamilton, John Marshall, and other founders of the United States who had considerably different beliefs.

In City of Boerne v. Flores, 521 US 507 (1997), the Court ruled that only it, not Congress, has the power to define the rights granted by the 14th Amendment. It established a test of what is “appropriate legislation” under Section 5 of the Amendment, when such legislation infringed on the traditional rights of the states. There had to be “congruency” and “proportionality” between the aims of Congress and the means it would use. This effectively was a reversal of past cases that had acknowledged the power of Congress to expand rights granted under the 14th Amendment.

Now, with its Voting Rights Act decision, the Court has indirectly limited the same delegation of Congressional power in the 15th Amendment, but has done so by trying to create a new body of federal law.

Shelby is the fifth time the Supreme Court has ruled on the Voting Rights Act. Its constitutionality was upheld the first three times. The fourth case was resolved on non-constitutional grounds. Originally adopted in 1965, the intent of this centerpiece of the Civil Rights movement was to finally succeed in stopping racial discrimination in voting. The 15th Amendment to the Constitution, enacted in 1870, stated: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Congress was empowered to enforce the Amendment with “appropriate legislation.” Over the next 95 years there were many unsuccessful federal attempts to stop racial discrimination in voting in a number of the states that formerly were part of the Confederacy.

By the 1960s, when civil rights efforts exploded in the South to try to break the grip of racial segregation, with much violence by whites against blacks and against civil rights activists, the registration of black voters generally still was in single digit percentages of their population. Various means had been used to prevent blacks from registering. The most successful were literacy tests, which often only were administered to blacks, and were designed to prevent most from passing them.

The Voting Rights Act outlawed racial discrimination in voting, and gave the Justice Department the power to enforce the act through legal action. The key section of the Act, ruled unconstitutional by the Court in Shelby, provided that in specific states and localities, identified by both having very low black voter registration in 1964, and having used literacy tests in that year, could not change their voting laws without preclearance, that is, first submitting the proposed changes for approval to the Justice Department, or to a three judge federal panel in Washington, DC.

The first Supreme Court case that resulted from a challenge to the Act's constitutionality by several states was a major event. The Court invited all states to intervene in the case. Seven states were permitted to make arguments to the court, a virtually unprecedented event that Chief Justice Earl Warren described as “emotional.” Writing for an 8-1 majority in South Carolina v. Katzenbach 383 US 301 (1966), that upheld the Act in its entirety, Warren wrote that it complied with the 15th Amendment’s grant of power to Congress to enact “appropriate legislation” to eliminate racial discrimination in voting.

Congress exercised its authority under the Fifteenth Amendment in an inventive manner when it enacted the Voting Rights Act of 1965. First: The measure prescribes remedies for voting discrimination, which go into effect without any need for prior adjudication. This was clearly a legitimate response to the problem, for which there is ample precedent under other constitutional provisions. See Katzenbach v. McClung, 379 U. S. 294, 302-304; United States v. Darby, 312 U. S. 100, 120-121. Congress had found that case-by-case litigation was inadequate to combat widespread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits. After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims.

As to the employment of the criteria of low black voter registration and the use of literacy tests in the specific states covered, Warren wrote:

The areas listed above, for which there was evidence of actual voting discrimination, share two characteristics incorporated by Congress into the coverage formula: the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average. Tests and devices are relevant to voting discrimination because of their long history as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters. Accordingly, the coverage formula is rational in both practice and theory. It was therefore permissible to impose the new remedies on the few remaining States and political subdivisions covered by the formula, at least in the absence of proof that they have been free of substantial voting discrimination in recent years.

Chief Justice Warren also pointed out that the Act provided a means by which any covered state could get out from under the Act simply by behaving for five years by not trying to employ any method of racial discrimination in its voting procedures.

South Carolina contends that these termination procedures are a nullity because they impose an impossible burden of proof upon States and political subdivisions entitled to relief. As the Attorney General pointed out during hearings on the Act, however, an area need do no more than submit affidavits from voting officials, asserting that they have not been guilty of racial discrimination through the use of tests and devices during the past five years, and then refute whatever evidence to the contrary may be adduced by the Federal Government. Section 4 (d) further assures that an area need not disprove each isolated instance of voting discrimination in order to obtain relief in the termination proceedings. The burden of proof is therefore quite bearable, particularly since the relevant facts relating to the conduct of voting officials are peculiarly within the knowledge of the States and political subdivisions themselves.

Originally the Act was scheduled to expire in five years. However, Congress renewed it twice for increasingly longer periods of time, and each time the Supreme Court upheld the Act against challenges. The effective date in the criteria for the use of literacy tests, and for low black registration was moved up to 1972. When it came up for renewal again in 2006, Congress conducted months of hearings and investigations, assembling a record of 15,000 pages. Congress documented hundreds of attempts by states covered by the Act to circumvent its intent and continue to discriminate against blacks, which were stopped by the Justice Department's right of preclearance. The 2006 Act specifically mentioned that the old criteria was kept in place because it still accurately identified the states that needed to be constrained because the Act had prevented them from implementing numerous actions that would have circumvented its purpose.

In fact, the Act was enormously successful in achieving its original purpose. The percentages of the black population that became registered voters in the states covered by the preclearance requirements reached, and in some cases, exceeded those of whites. Many blacks were elected to public office in these states. The issue before Congress was whether the Act needed to be continued to prevent backsliding, to prevent states from implementing various new, “second generation,” means, of limiting or diluting black votes. The record assembled by Congress documented hundreds of attempts by states to thwart the Act and discriminate by other means, which were unsuccessful due to the preclearance provision. Congress was convinced that the continuation of preclearance was essential to fulfilling the requirements of the 15th Amendment.

By a unanimous vote in the Senate and almost a unanimous vote in the House, the Act was renewed for 25 years. However, Congress did not change the effective date for the criteria from 1972. President Bush enthusiastically signed the extension. Once again, the Act's constitutionality was challenged.

The Supreme court decided that case, Northwest Austin Mun Utility Dist No One v Holder 557 US 193 (2009) on non-constitutional grounds, thus preserving the Act, but inviting another challenge. The contempt the conservative majority has for the political process, and specifically for Congress, was made obvious in an exchange that occurred during the oral arguments before the Supreme Court. It was related by Stanford University Law Professor Pamela S. Karlan, (herself once rumored to be on the list of possible Obama appointees to the Court), in the Foreword, “Democracy and Disdain,” to her 2012 comprehensive comparison of the Warren and Roberts Courts in the Harvard Law Review, “The Supreme Court, 2012 Term:”

Sometimes the Justices seem barely able to hide their disdain for the other branches of government. Take the oral argument three Terms ago in Northwest Austin Municipal Utility District No. One v. Holder. Justice Scalia pointed to the overwhelming congressional vote in favor of amending and extending section 5 of the Voting Rights Act of 1965— the “crown jewel” of the Second Reconstruction — as a reason not for deference, but for suspicion:

JUSTICE SCALIA: . . . What was the vote on this 2006 extension — 98 to

nothing in the Senate, and what was it in the House? Was —

MR. ADEGBILE: It was — it was 33 to 390, I believe.

JUSTICE SCALIA: 33 to 390. You know, the — the Israeli Supreme

Court, the Sanhedrin, used to have a rule that if the death penalty was

pronounced unanimously, it was invalid, because there must be something

Wrong there. (Footnotes omitted)

Chief Justice Roberts, writing for an 8-1 majority, warned that he and other members of the Court had serious misgivings about the Act's continued constitutionality. He cited the fact that black voter registrations had dramatically increased in the affected states, to the point they were on a par with whites. He wrote that the Act might not meet constitutional requirements under either the 14th or the 15th Amendment. He questioned whether the criteria that kept states under the preclearance limitations still had a rational basis. He then raised the question of whether the Act violated the “principle of equal sovereignty.”

Using South Carolina v. Katzenbach as the basis for his contention of a violation of the principle of equal sovereignty he quoted it as saying, that in some cases, “the doctrine of equality of States … does not bar … remedies for local evils which have subsequently appeared.” He then went on to write that a “departure from the fundamental principle of equal sovereignty requires a showing that a statute's geographic coverage is sufficiently related to the problem that it targets.” He wrote that the criteria, being more than 35-years old no longer reflected current conditions and thus could be considered unconstitutional.

The problem with Chief Justice Roberts' argument is that he deleted some critical words from Chief Justice Warren's statement in South Carolina v. Katzenbach and reversed its meaning. Chief Justice Warren rejected South Carolina's claim of a violation of the doctrine of equal sovereignty because he wrote what doctrine exists did not apply.

The Act intentionally confines these remedies to a small number of States and political subdivisions which in most instances were familiar to Congress by name. This, too, was a permissible method of dealing with the problem. Congress had learned that substantial voting discrimination presently occurs in certain sections of the country, and it knew no way of accurately forecasting whether the evil might spread elsewhere in the future. In acceptable legislative fashion, Congress chose to limit its attention to the geographic areas where immediate action seemed necessary. See McGowan v. Maryland, 366 U. S. 420, 427; Salsburg v. Maryland, 346 U. S. 545, 550-554. The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.”

The italicized words are those deleted by Chief Justice Roberts and by deleting them he wrote the Court ruled exactly the opposite of what it actually did.

Sure enough, another challenge to the law worked its way through the courts, a suit by Shelby County, Alabama, challenging the constitutionality of the Act. Their argument was rejected, with only one dissent, by the Federal Appellate Court in Washington, a court consisting of a majority of conservative judges appointed by Republican Presidents. Republicans in the Senate have successfully prevented President Obama from filling some of the vacancies on that extremely influential court and thus possibly shift its ideological balance.

It should not have been a surprise to anyone who was paying attention that seldom was a majority of the Supreme Court so ready to overturn an act of Congress. In the December 9, 2009 issue of the Yale Law Journal, Travis Crum wrote a very prescient analysis of the North Austin case, the issues involved with Voting Rights Act, and predicted that the Act would be struck down unless Congress made changes in it. Congress did not. Chief Justice Roberts pointed out that the Court had warned Congress four years ago in Northwest Austin that it was wrong to leave the criteria set in 1972 because it was out of date and thus, probably, unconstitutional.

The Court could have decided the case on very narrow grounds that still would have been heavily criticized, but still possibly defensible. The Court might have decided the case entirely under the 15th Amendment. Using the reasoning of South Carolina v Katzenbach that the criteria was “rational” in 1965, he simply could have said that since it had not been updated from 1972 it was out of date and no longer “rational,” and thus no longer complied with the Amendment's “appropriate legislation” requirements.

He did find that the criteria of using literacy tests and having low black voter registration, set in 1972, was out of date in 2013. Citing his dictum in Northwest Austin, he noted recent voter registration statistics as a reason why basic criteria of the Act no longer were relevant, and needed to be updated. He did not reference the hundreds of cases in these states where the Justice Department, acting under the authority of the Act, had prevented discriminatory changes in voting laws, including some as recently as 2012, and some in Shelby County, which alone, Justice Ginsberg wrote in her dissent should have provided sufficient reason to dismiss their challenge.

The case also could have been dismissed because of the “bail out” provision of the Act, referenced in South Carolina v. Katzenbach above that could have permitted any of the covered jurisdictions to get out from under the preclearance restrictions if they could make a showing of not having attempted any racial discrimination in voting practices or procedures in the previous five years. The fact is, they could not, as the Congressional record in 2006 showed.

Roberts did not use the 15th Amendment as the legal basis of his opinion. And despite his dictum in Northwest Austin that the Act also violated the 14th Amendment, he made no reference to that Amendment in his decision. Instead, he based his decision on another attempt to create a doctrine of “equality of sovereignty of the states.” He used as support for his opinion, the dictum in Northwest Austin that was based on his manipulation of South Carolina v. Katzenbach, where by deleting some words he reversed that Court's meaning. Justice Ginsberg correctly accused him of inventing this concept of “equality of state sovereignty” but while she did not call him out for his deception, she did say his decision was an act of “hubris.”

Roberts established a standard that would have to be overcome for an act of Congress to violate what he called the “equality” of the states. In what seems like a variant of the Court’s criteria in the previously cited 14th Amendment case of City of Boerne, he wrote in Shelby that the geographic coverage of the Voting Right Act had to be sufficiently relevant to the problem it targeted. He wrote that because the criteria were based on data from 1972, they did not reflect current conditions, and thus were no longer relevant. It did not matter that Congress had determined that the “second generation” attempts to circumvent the Act provided new data to justify the continued use of the original criteria, which simply were used to identify the states that were the greatest offenders of the 15th Amendment. Because the basic criteria used to identify those states now were out of date, it did not meet the Chief Justice's new standard. The prospect that similar reasoning might be applied to many other acts of Congress that treat states unequally clearly disturbed Justice Ginsberg, who said further extension of this made-up doctrine could cause “great mischief.”

Chief Justice Roberts also wrote in dictum that the Act violated the Tenth Amendment, but misstated the words of the Amendment, writing that it says, “All powers not specifically granted to the federal government are reserved to the states, or citizens.” (Italics added). The actual text of the Tenth Amendment is “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Roberts argued that the Act violated principles of federalism derived from the Tenth Amendment, including the “traditional prerogative” of the states to operate elections. He quoted from a citation applied incorrectly in Gregory v Ashcroft, 501 US 452 (1991) of a phrase also applied incorrectly in Sugarman v Dougall, 413 US 634 (1973) that “the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.” Neither he, nor the decisions he cited, mentioned that this phrase came from a dissenting opinion in Oregon v. Mitchell, 400 US 112 (1970), and while the majority decided that states generally only had exclusive power over state elections, Congress had the power to regulate national elections, and also, under the Civil War amendments, had the power to insure, among other things, that there was no racial discrimination in any elections.

Oregon is relevant to Shelby, but not in the way the Chief Justice indirectly used it. In a challenge to the Voting Rights Act of 1970, the Court ruled in Oregon that the Constitution granted Congress the power to regulate national elections, and upheld Congressional Acts that lowered the voting age to 18, outlawed literacy tests, and required states to permit voting in national elections by citizens who had not met their residency requirements (such as college students). The Court did decide that the lowering of the voting age to 18 could not be applied to state elections, conceding the right to administer state and local elections was a state power. The 26th Amendment subsequently did lower the voting age in all elections to 18. The Court upheld the power of Congress to outlaw literacy tests in all elections. If anything, the Oregon case bolstered the power of Congress to regulate voting, at least in national elections, and under various circumstances, some aspects of state elections as well.

It is possible that the misreading of that dissenting statement in Oregon was due to the diplomatic way in which Justice Hugo Black, in writing the majority opinion, disagreed with his “Brother Harlan:”

In short, the Constitution allotted to the States the power to make laws regarding national elections, but provided that if Congress became dissatisfied with the state laws, Congress could alter them … On the other hand, the Constitution was also intended to preserve to the States the power that even the Colonies had to establish and maintain their own separate and independent governments, except insofar as the Constitution itself commands otherwise. My Brother HARLAN has persuasively demonstrated that the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections. My major disagreement with my Brother HARLAN is that, while I agree as to the States' power to regulate the elections of their own officials, I believe, contrary to his view, that Congress has the final authority over federal elections.

As to the power of Congress to interfere in state elections, Justice Black wrote,

It is obvious that the whole Constitution reserves to the States the power to set voter qualifications in state and local elections, except to the limited extent that the people through constitutional amendments have specifically narrowed the powers of the States. Amendments Fourteen, Fifteen, Nineteen, and Twenty-four, each of which has assumed that the States had general supervisory power over state elections, are examples of express limitations on the power of the States to govern themselves.

Shelby is not the first time a Supreme Court decision has erroneously described the terms and application of the Tenth Amendment, which has been controversial since before it was added to the Bill of Rights at the time of the ratification of the Constitution. In 1918, the Supreme Court, in Hammer v. Dagenhart, 247 US 251 (1918) declared unconstitutional an act of Congress designed to restrict child labor. The court cited an obscure Civil War era case that erroneously stated in dictum that the Tenth Amendment reserved powers to the states ”not expressly delegated to the national government.” (Italics added. The word “expressly” is not in the Tenth Amendment). Mistakes of the Court can have long-term consequences. It was 21 years before the Court overruled Dagenhart and finally enabled the federal government to regulate child labor, 100 years after it was done in Great Britain.

The Tenth Amendment was included in the Bill of Rights, the first ten amendments, by the insistence of many who feared that the new national government would become tyrannical. Two of the three authors of the Federalist, James Madison, the “architect” of the Constitution, and Alexander Hamilton, one of the principal advocates of a strong national government, believed that the other amendments in the Bill of Rights provided the necessary safeguards against tyranny, but agreed to include it as a compromise. However, as with most of the Constitution, it was carefully worded. A similar clause was in the Article of Confederation, but it was more specific, reserving powers to the states “not expressly delegated” to the national government. That provision was one the major factors in the lack of effectiveness of the national government under the Articles of Confederation that almost led to dissolution of the union.

The principal purpose in writing a new Constitution in 1787 was to strengthen the national government and thus preserve the nation. Madison particularly was concerned that the states might weaken the national government, as they had under the Articles of Confederation. He did not want the state governments involved in the national government, or to have any say about its operation. Consequently, the decision was made to exclude such specific language as “expressly” or “specifically” from the Tenth Amendment. However, that has not prevented others from reading that language into it, as Chief Justice Roberts did in his opinion.

There is another error in the Chief Justice's statement. The reservation of powers is not just to the states, and it is not to the “citizens.” It is “or to the people.” The use of the term, “the people” has special meaning in the Constitution. It is first used in the Preamble, “We, the people of the United States...” (Note, not “these” United States as we frequently hear from politicians, including President Obama, today). The ratification of the Constitution was required to be done by “the people” in state conventions. The authors of the Constitution did not want it ratified by the states, or the state legislatures. The Constitution was to be an agreement among the people of the United States that bound them, their descendants, and their state governments to its terms. Justice Story, in his landmark opinion in the 1816 case, Martin v. Hunter's Lessee, 1 Wheat (14 US 304) (1816), wrote that the Constitution was the work of the people, and as a result had a higher sovereignty than that of the states. He wrote,

The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by "the people of the United States." There can be no doubt that it was competent to the people to invest the general government with all the powers which they might deem proper and necessary, to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there be that the people had a right to prohibit to the States the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact, to make the powers of the State governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to delegate to either.

Governeur Morris, the author of the Preamble and nicknamed the “Penman” of the Constitution, chose the words “the people” over alternative proposals that would have used terms such as “we the states,” because he intended the national government to derive its sovereignty from the people, not from the states.

If properly interpreted under standard statutory construction, the phrase “or to the people” modifies the entire Amendment. The reservation to the states is not exclusive. “The people” are alternative recipients of the reserved powers. This was a very clever bit of draftsmanship. The people, as the Constitution treats that term, are the people of the United States, not of any individual states. The Constitution originally gave the states the power to determine citizenship, but that right was taken away from the states and given to Congress by the 14th Amendment. That Amendment defined the people as citizens of both the United States and of the states where they reside.

Their national and state governments are representative democracies, called the “republican” form of government in the Constitution, which requires the national government to guarantee to the people that their states have the republican form of government. That clause, combined with the Supremacy Clause, and the Necessary and Proper clause, clearly give the national government, which is governed by the “people” through their elected representatives, and the elected President, the right to interfere with the sovereignty of the states. The Tenth Amendment not only does not modify that power, it strengthens it.

Thus, it can be argued rationally that there really is no grant of powers to the states in the Tenth Amendment different from any available to the national government. In the 1941 decision, United States v. Darby Lumber Co. 312 US 100 (1941) Chief Justice Harlan Fiske Stone said the Tenth Amendment was “but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.”

Conservative members of the Court, beginning with William Renquist, before he became Chief Justice, have attempted to revive the Tenth Amendment in the way it was used by states' rights advocates before the Civil War, as creating a body of state sovereignty and states' rights, and as a way of limiting the federal government. The one modern case where it actually was at least part of the basis of a decision, National League of Cities v. Usery 426 US 833 (1976) resulted in so much legal confusion that the Court found it had to specifically reverse itself in Garcia v. San Antonio Metropolitan Transit Aauthority. 469 U.S. 528 (1985).

Justice Blackmun, who had voted with Renquist in National League of Cities, changed his mind, and wrote the majority opinion in Garcia. He summarized the reversal of National League of Cities:

We therefore now reject, as unsound in principle and unworkable in practice, a rule of state immunity from federal regulation that turns on a judicial appraisal of whether a particular governmental function is "integral" or "traditional." Any such rule leads to inconsistent results at the same time that it disserves principles of democratic self-governance, and it breeds inconsistency precisely because it is divorced from those principles. If there are to be limits on the Federal Government's power to interfere with state functions — as undoubtedly there are — we must look elsewhere to find them.

The Tenth Amendment has not been used as the basis of any Supreme Court holding since, but it periodically is mentioned in dictum, as in the Shelby case.

The Court should be careful what it wishes for. The Constitution does not specifically grant the power to overturn acts of Congress to the Supreme Court, nor does the Judiciary Act of 1789 that structured the Court. That power of the Supreme Court was asserted by Chief Justice John Marshall in Marbury v. Madison 5 US 137 (1803). There was opposition to that ruling for much of the time before the Civil War, especially in the South. Advocates of states’ rights argued that the Tenth Amendment gave the states the power to nullify acts of Congress instead of the Supreme Court. South Carolina's John Calhoun, the leading exponent of the doctrine of nullification, vigorously opposed that position of the Court, arguing that the power to reject Acts of Congress as unconstitutional lay with the states.

Nullification finally was ruled unconstitutional in Cooper v. Aaron, 358 U.S. 1 (1958). However, in recent years The Tenth Amendment Center, an organization supported by an alliance of libertarian, right-wing, and neo-Confederate groups, has been attempting to resuscitate the Tenth Amendment not only to limit the powers of the federal government, but also to erode the power of the Supreme Court. By attempting in Shelby and Northwest Austin to invent a doctrine of “equality of sovereignty,” and to revive the Tenth Amendment as a restriction on the national government, Chief Justice Roberts risks opening a Pandora's Box of dangerous and evil outcomes he almost surely would regret.

One of the most famous debates ever held in the United States Senate occurred in 1830 when Massachusetts Senator Daniel Webster, who had achieved fame as an attorney arguing many cases before the Supreme Court, squared off against South Carolina Senator Robert Hayne over the claim of South Carolina's right of nullification. It actually was a speech primarily pointed at Vice-President Calhoun. Webster's speech of several hours decimated the advocacy of states' rights, and eloquently and powerfully summarized the spirit of a united people as citizens of the United States of America. A portion of that speech became required memorization for several generations of school children across much the nation, helping to create a national identity. Today, on the website of the U.S. Senate it is described as the most famous speech in the history of the Senate:

The people, then, Sir, erected this government. They gave it a Constitution, and in that Constitution they have enumerated the powers which they bestow on it. They have made it a limited government. They have defined its authority. They have restrained it to the exercise of such powers as are granted; and all others, they declare, are reserved to the States or the people. But, Sir, they have not stopped here. If they had, they would have accomplished but half their work. No definition can be so clear, as to avoid possibility of doubt; no limitation so precise, as to exclude all uncertainty. Who, then, shall construe this grant of the people? Who shall interpret their will, where it may be supposed they have left it doubtful? With whom do they repose this ultimate right of deciding on the powers of government? Sir, they have settled all this in the fullest manner. They have left it with the government itself, in its appropriate branches. Sir, the very chief end, the main design, for which the whole Constitution was framed and adopted, was to establish a government that should not be obliged to act through State agency, or depend on State opinion and State discretion. The people had had quite enough of that kind of government under the Confederation. Under that system, the legal action, the application of law to individuals, belonged exclusively to the States. Congress could only recommend; their acts were not of binding force, till the States had adopted and sanctioned them. Are we in that condition still? Are we yet at the mercy of State discretion and State construction? Sir, if we are, then vain will be our attempt to maintain the Constitution under which we sit.

What can be done now? Will Congress fix the Voting Rights Act? That seems unlikely in the near future. However, contrary to many initial reports, the Supreme Court did not leave the Voting Rights Act without any teeth. It still is unconstitutional for states to discriminate in their voting laws. In Section 3c there is what is called the “pocket trigger” that provides a means by which state and local governments can be brought under preclearance of the Justice Department and the federal court in Washington if they do act unconstitutionally.

Section 3c has been used numerous times to bring additional jurisdictions under preclearance. Most of the time that has happened through consent decrees because the local jurisdictions want to avoid litigation that can cost millions of dollars. These preclearances usually are more limited in scope, and in time, than those under Section 4 that was thrown out by the Supreme Court. They usually apply only to specific actions, such as voter ID laws, or redistricting plans, and not to minor changes in laws and regulations, and have a limit of just a few years. They seem to address some of the issues the Court raised about Section 4, and thus might withstand constitutional challenges.

The problem with 3c is that it requires a showing both of intent to discriminate and an effect of actual discrimination. Intent can be hard to prove. Not every state has a Republican leader as senseless as the one in Pennsylvania who said, after the Republican-controlled state legislature passed a voter ID law, that they had just given the state’s electoral votes to Mitt Romney.

Action has begun to start utilizing 3c as a replacement for Section 4. The first battleground in Texas, where state officials announced they would implement their voter ID law and redistricting plan right after the Court announced its Selby decision. Both are considered discriminatory and were being blocked by the Justice Department in federal court in Washington. The state has filed a brief to dismiss the Justice Department’s preclearance block, but opponents have replied with a request to move the action under Section 3c.

Section 3c permits actions to be brought by injured parties as well as the Justice Department. In addition to the suit in the federal court in Washington, a group in Texas now has filed suit in Texas Federal District Court to apply Section 3c to the Texas voter ID law and redistricting plan. Almost certainly legal action will be brought under 3c in almost any state previously covered by preclearance that now tries to enact discriminatory voter laws and regulations.

The actions of the people in Texas can be followed at txredistricting.org. The previously cited 2009 Yale Law Journal has an excellent description of the working of 3c. .

Meanwhile, law reviews across the country are going to have a field day with the Shelby decision. It should rank with some of the Court's most notorious past decisions, among them, Dred Scott v Sandford 60 US 393(1857), that validated the Fugitive Slave Law, Plessy v. Ferguson 163 U.S. 537 (1896) that approved “separate but equal,” Lochner v New York 198 US 45 (1905) that threw out a law that attempted to protect bakers from being forced to work more than 60 hours a week because the Court said it violated their right to contract, the previously cited Hammer v. Dagenhart case that misquoted the Tenth Amendment and prevented the federal government from restricting child labor, and Citizens United v FEC 558 US 310 (2010) that unleashed a flood of private and secret money into American elections.

This piece was reprinted by Truthout with permission or license. It may not be reproduced in any form without permission or license from the source.

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Deception and Error: The Supreme Court's Wrong Decision on Voting Rights

Thursday, 11 July 2013 13:13 By Dan Riker, SpeakOut | News Analysis

 Chief Justice John Roberts deceptively altered an earlier Supreme Court decision, misapplied another, and erroneous described the Tenth Amendment in writing the majority opinion that ruled the key section of the Voting Rights Act unconstitutional. What he did generally has gone unnoticed in the subsequent articles that have been published about the decision. This article provides a detailed analysis of what he did, and why that makes his decision legally and constitutionally wrong. However, the Court did not take away another provision that gives the Act some significant enforcement power.

In ruling the key provision of the Voting Rights Act unconstitutional, Chief Justice John Roberts, writing for the 5-4 Supreme Court majority in Shelby County v Holder 579 US __, also attempted to reanimate right wing ideas that courts long ago extinguished. In so doing he employed a line of reasoning that was deceptive and erroneous. Associate Justice Ruth Bader Ginsberg, in a lengthy and biting dissent, described his approach as an exercise of “hubris,” potentially “capable of much mischief.”

Indeed, the five member conservative majority of this Court already is engaged in judicial mischief. This Court has become one of the most aggressive in history in its assertion of its judgment in place of that of Congress. It may have less respect for the democratic political process than any previous modern Court. It is the only Supreme Court in history that does not have a single justice with experience in public office. It has abandoned some of the Court's most established historical practices such as giving Congressional acts a presumption of constitutionality. More frequently than any modern Court it substitutes its determination of facts for those of Congress, or simply ignores Congressional fact-finding and determinations. It certainly did that in Shelby.

The majority of this Supreme Court seems determined to undo virtually the entire New Deal and Great Society programs that expanded political freedom and economic security for the vast majority of Americans through expansive federal power. The conservative majority seems intent on reducing the scope and powers of the federal government, and expanding those of the states. This is being accomplished by narrowing the scope of the Commerce Clause that historically has been the basis of many federal actions and programs, redefining the meaning of “appropriate legislation” in the 14th and 15th Amendment delegations of power to Congress to enact legislation to enforce their provisions, and in attempting to create a new doctrine of equality of state sovereignty that has no basis in prior decisions, law, or the Constitution. In Shelby, Chief Justice Roberts also erroneously described and misapplied the Tenth Amendment, which extreme right wing, libertarian, and neo-Confederate groups are attempting to resuscitate to nullify federal laws and Supreme Court decisions.

The mind set of the Chief Justice and his conservative allies on the Court is best summarized by two sentences Roberts wrote in his Affordable Care Act decision last year when the Court upheld the Act as a tax, but eliminated the requirement that states accept the expansion of Medicaid or lose their existing Medicaid federal funding. He wrote, “The states are separate and independent sovereigns. Sometimes they must act like it.” That statement would be a great shock to James Madison, Alexander Hamilton, John Marshall, and other founders of the United States who had considerably different beliefs.

In City of Boerne v. Flores, 521 US 507 (1997), the Court ruled that only it, not Congress, has the power to define the rights granted by the 14th Amendment. It established a test of what is “appropriate legislation” under Section 5 of the Amendment, when such legislation infringed on the traditional rights of the states. There had to be “congruency” and “proportionality” between the aims of Congress and the means it would use. This effectively was a reversal of past cases that had acknowledged the power of Congress to expand rights granted under the 14th Amendment.

Now, with its Voting Rights Act decision, the Court has indirectly limited the same delegation of Congressional power in the 15th Amendment, but has done so by trying to create a new body of federal law.

Shelby is the fifth time the Supreme Court has ruled on the Voting Rights Act. Its constitutionality was upheld the first three times. The fourth case was resolved on non-constitutional grounds. Originally adopted in 1965, the intent of this centerpiece of the Civil Rights movement was to finally succeed in stopping racial discrimination in voting. The 15th Amendment to the Constitution, enacted in 1870, stated: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Congress was empowered to enforce the Amendment with “appropriate legislation.” Over the next 95 years there were many unsuccessful federal attempts to stop racial discrimination in voting in a number of the states that formerly were part of the Confederacy.

By the 1960s, when civil rights efforts exploded in the South to try to break the grip of racial segregation, with much violence by whites against blacks and against civil rights activists, the registration of black voters generally still was in single digit percentages of their population. Various means had been used to prevent blacks from registering. The most successful were literacy tests, which often only were administered to blacks, and were designed to prevent most from passing them.

The Voting Rights Act outlawed racial discrimination in voting, and gave the Justice Department the power to enforce the act through legal action. The key section of the Act, ruled unconstitutional by the Court in Shelby, provided that in specific states and localities, identified by both having very low black voter registration in 1964, and having used literacy tests in that year, could not change their voting laws without preclearance, that is, first submitting the proposed changes for approval to the Justice Department, or to a three judge federal panel in Washington, DC.

The first Supreme Court case that resulted from a challenge to the Act's constitutionality by several states was a major event. The Court invited all states to intervene in the case. Seven states were permitted to make arguments to the court, a virtually unprecedented event that Chief Justice Earl Warren described as “emotional.” Writing for an 8-1 majority in South Carolina v. Katzenbach 383 US 301 (1966), that upheld the Act in its entirety, Warren wrote that it complied with the 15th Amendment’s grant of power to Congress to enact “appropriate legislation” to eliminate racial discrimination in voting.

Congress exercised its authority under the Fifteenth Amendment in an inventive manner when it enacted the Voting Rights Act of 1965. First: The measure prescribes remedies for voting discrimination, which go into effect without any need for prior adjudication. This was clearly a legitimate response to the problem, for which there is ample precedent under other constitutional provisions. See Katzenbach v. McClung, 379 U. S. 294, 302-304; United States v. Darby, 312 U. S. 100, 120-121. Congress had found that case-by-case litigation was inadequate to combat widespread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits. After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims.

As to the employment of the criteria of low black voter registration and the use of literacy tests in the specific states covered, Warren wrote:

The areas listed above, for which there was evidence of actual voting discrimination, share two characteristics incorporated by Congress into the coverage formula: the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average. Tests and devices are relevant to voting discrimination because of their long history as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters. Accordingly, the coverage formula is rational in both practice and theory. It was therefore permissible to impose the new remedies on the few remaining States and political subdivisions covered by the formula, at least in the absence of proof that they have been free of substantial voting discrimination in recent years.

Chief Justice Warren also pointed out that the Act provided a means by which any covered state could get out from under the Act simply by behaving for five years by not trying to employ any method of racial discrimination in its voting procedures.

South Carolina contends that these termination procedures are a nullity because they impose an impossible burden of proof upon States and political subdivisions entitled to relief. As the Attorney General pointed out during hearings on the Act, however, an area need do no more than submit affidavits from voting officials, asserting that they have not been guilty of racial discrimination through the use of tests and devices during the past five years, and then refute whatever evidence to the contrary may be adduced by the Federal Government. Section 4 (d) further assures that an area need not disprove each isolated instance of voting discrimination in order to obtain relief in the termination proceedings. The burden of proof is therefore quite bearable, particularly since the relevant facts relating to the conduct of voting officials are peculiarly within the knowledge of the States and political subdivisions themselves.

Originally the Act was scheduled to expire in five years. However, Congress renewed it twice for increasingly longer periods of time, and each time the Supreme Court upheld the Act against challenges. The effective date in the criteria for the use of literacy tests, and for low black registration was moved up to 1972. When it came up for renewal again in 2006, Congress conducted months of hearings and investigations, assembling a record of 15,000 pages. Congress documented hundreds of attempts by states covered by the Act to circumvent its intent and continue to discriminate against blacks, which were stopped by the Justice Department's right of preclearance. The 2006 Act specifically mentioned that the old criteria was kept in place because it still accurately identified the states that needed to be constrained because the Act had prevented them from implementing numerous actions that would have circumvented its purpose.

In fact, the Act was enormously successful in achieving its original purpose. The percentages of the black population that became registered voters in the states covered by the preclearance requirements reached, and in some cases, exceeded those of whites. Many blacks were elected to public office in these states. The issue before Congress was whether the Act needed to be continued to prevent backsliding, to prevent states from implementing various new, “second generation,” means, of limiting or diluting black votes. The record assembled by Congress documented hundreds of attempts by states to thwart the Act and discriminate by other means, which were unsuccessful due to the preclearance provision. Congress was convinced that the continuation of preclearance was essential to fulfilling the requirements of the 15th Amendment.

By a unanimous vote in the Senate and almost a unanimous vote in the House, the Act was renewed for 25 years. However, Congress did not change the effective date for the criteria from 1972. President Bush enthusiastically signed the extension. Once again, the Act's constitutionality was challenged.

The Supreme court decided that case, Northwest Austin Mun Utility Dist No One v Holder 557 US 193 (2009) on non-constitutional grounds, thus preserving the Act, but inviting another challenge. The contempt the conservative majority has for the political process, and specifically for Congress, was made obvious in an exchange that occurred during the oral arguments before the Supreme Court. It was related by Stanford University Law Professor Pamela S. Karlan, (herself once rumored to be on the list of possible Obama appointees to the Court), in the Foreword, “Democracy and Disdain,” to her 2012 comprehensive comparison of the Warren and Roberts Courts in the Harvard Law Review, “The Supreme Court, 2012 Term:”

Sometimes the Justices seem barely able to hide their disdain for the other branches of government. Take the oral argument three Terms ago in Northwest Austin Municipal Utility District No. One v. Holder. Justice Scalia pointed to the overwhelming congressional vote in favor of amending and extending section 5 of the Voting Rights Act of 1965— the “crown jewel” of the Second Reconstruction — as a reason not for deference, but for suspicion:

JUSTICE SCALIA: . . . What was the vote on this 2006 extension — 98 to

nothing in the Senate, and what was it in the House? Was —

MR. ADEGBILE: It was — it was 33 to 390, I believe.

JUSTICE SCALIA: 33 to 390. You know, the — the Israeli Supreme

Court, the Sanhedrin, used to have a rule that if the death penalty was

pronounced unanimously, it was invalid, because there must be something

Wrong there. (Footnotes omitted)

Chief Justice Roberts, writing for an 8-1 majority, warned that he and other members of the Court had serious misgivings about the Act's continued constitutionality. He cited the fact that black voter registrations had dramatically increased in the affected states, to the point they were on a par with whites. He wrote that the Act might not meet constitutional requirements under either the 14th or the 15th Amendment. He questioned whether the criteria that kept states under the preclearance limitations still had a rational basis. He then raised the question of whether the Act violated the “principle of equal sovereignty.”

Using South Carolina v. Katzenbach as the basis for his contention of a violation of the principle of equal sovereignty he quoted it as saying, that in some cases, “the doctrine of equality of States … does not bar … remedies for local evils which have subsequently appeared.” He then went on to write that a “departure from the fundamental principle of equal sovereignty requires a showing that a statute's geographic coverage is sufficiently related to the problem that it targets.” He wrote that the criteria, being more than 35-years old no longer reflected current conditions and thus could be considered unconstitutional.

The problem with Chief Justice Roberts' argument is that he deleted some critical words from Chief Justice Warren's statement in South Carolina v. Katzenbach and reversed its meaning. Chief Justice Warren rejected South Carolina's claim of a violation of the doctrine of equal sovereignty because he wrote what doctrine exists did not apply.

The Act intentionally confines these remedies to a small number of States and political subdivisions which in most instances were familiar to Congress by name. This, too, was a permissible method of dealing with the problem. Congress had learned that substantial voting discrimination presently occurs in certain sections of the country, and it knew no way of accurately forecasting whether the evil might spread elsewhere in the future. In acceptable legislative fashion, Congress chose to limit its attention to the geographic areas where immediate action seemed necessary. See McGowan v. Maryland, 366 U. S. 420, 427; Salsburg v. Maryland, 346 U. S. 545, 550-554. The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.”

The italicized words are those deleted by Chief Justice Roberts and by deleting them he wrote the Court ruled exactly the opposite of what it actually did.

Sure enough, another challenge to the law worked its way through the courts, a suit by Shelby County, Alabama, challenging the constitutionality of the Act. Their argument was rejected, with only one dissent, by the Federal Appellate Court in Washington, a court consisting of a majority of conservative judges appointed by Republican Presidents. Republicans in the Senate have successfully prevented President Obama from filling some of the vacancies on that extremely influential court and thus possibly shift its ideological balance.

It should not have been a surprise to anyone who was paying attention that seldom was a majority of the Supreme Court so ready to overturn an act of Congress. In the December 9, 2009 issue of the Yale Law Journal, Travis Crum wrote a very prescient analysis of the North Austin case, the issues involved with Voting Rights Act, and predicted that the Act would be struck down unless Congress made changes in it. Congress did not. Chief Justice Roberts pointed out that the Court had warned Congress four years ago in Northwest Austin that it was wrong to leave the criteria set in 1972 because it was out of date and thus, probably, unconstitutional.

The Court could have decided the case on very narrow grounds that still would have been heavily criticized, but still possibly defensible. The Court might have decided the case entirely under the 15th Amendment. Using the reasoning of South Carolina v Katzenbach that the criteria was “rational” in 1965, he simply could have said that since it had not been updated from 1972 it was out of date and no longer “rational,” and thus no longer complied with the Amendment's “appropriate legislation” requirements.

He did find that the criteria of using literacy tests and having low black voter registration, set in 1972, was out of date in 2013. Citing his dictum in Northwest Austin, he noted recent voter registration statistics as a reason why basic criteria of the Act no longer were relevant, and needed to be updated. He did not reference the hundreds of cases in these states where the Justice Department, acting under the authority of the Act, had prevented discriminatory changes in voting laws, including some as recently as 2012, and some in Shelby County, which alone, Justice Ginsberg wrote in her dissent should have provided sufficient reason to dismiss their challenge.

The case also could have been dismissed because of the “bail out” provision of the Act, referenced in South Carolina v. Katzenbach above that could have permitted any of the covered jurisdictions to get out from under the preclearance restrictions if they could make a showing of not having attempted any racial discrimination in voting practices or procedures in the previous five years. The fact is, they could not, as the Congressional record in 2006 showed.

Roberts did not use the 15th Amendment as the legal basis of his opinion. And despite his dictum in Northwest Austin that the Act also violated the 14th Amendment, he made no reference to that Amendment in his decision. Instead, he based his decision on another attempt to create a doctrine of “equality of sovereignty of the states.” He used as support for his opinion, the dictum in Northwest Austin that was based on his manipulation of South Carolina v. Katzenbach, where by deleting some words he reversed that Court's meaning. Justice Ginsberg correctly accused him of inventing this concept of “equality of state sovereignty” but while she did not call him out for his deception, she did say his decision was an act of “hubris.”

Roberts established a standard that would have to be overcome for an act of Congress to violate what he called the “equality” of the states. In what seems like a variant of the Court’s criteria in the previously cited 14th Amendment case of City of Boerne, he wrote in Shelby that the geographic coverage of the Voting Right Act had to be sufficiently relevant to the problem it targeted. He wrote that because the criteria were based on data from 1972, they did not reflect current conditions, and thus were no longer relevant. It did not matter that Congress had determined that the “second generation” attempts to circumvent the Act provided new data to justify the continued use of the original criteria, which simply were used to identify the states that were the greatest offenders of the 15th Amendment. Because the basic criteria used to identify those states now were out of date, it did not meet the Chief Justice's new standard. The prospect that similar reasoning might be applied to many other acts of Congress that treat states unequally clearly disturbed Justice Ginsberg, who said further extension of this made-up doctrine could cause “great mischief.”

Chief Justice Roberts also wrote in dictum that the Act violated the Tenth Amendment, but misstated the words of the Amendment, writing that it says, “All powers not specifically granted to the federal government are reserved to the states, or citizens.” (Italics added). The actual text of the Tenth Amendment is “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Roberts argued that the Act violated principles of federalism derived from the Tenth Amendment, including the “traditional prerogative” of the states to operate elections. He quoted from a citation applied incorrectly in Gregory v Ashcroft, 501 US 452 (1991) of a phrase also applied incorrectly in Sugarman v Dougall, 413 US 634 (1973) that “the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.” Neither he, nor the decisions he cited, mentioned that this phrase came from a dissenting opinion in Oregon v. Mitchell, 400 US 112 (1970), and while the majority decided that states generally only had exclusive power over state elections, Congress had the power to regulate national elections, and also, under the Civil War amendments, had the power to insure, among other things, that there was no racial discrimination in any elections.

Oregon is relevant to Shelby, but not in the way the Chief Justice indirectly used it. In a challenge to the Voting Rights Act of 1970, the Court ruled in Oregon that the Constitution granted Congress the power to regulate national elections, and upheld Congressional Acts that lowered the voting age to 18, outlawed literacy tests, and required states to permit voting in national elections by citizens who had not met their residency requirements (such as college students). The Court did decide that the lowering of the voting age to 18 could not be applied to state elections, conceding the right to administer state and local elections was a state power. The 26th Amendment subsequently did lower the voting age in all elections to 18. The Court upheld the power of Congress to outlaw literacy tests in all elections. If anything, the Oregon case bolstered the power of Congress to regulate voting, at least in national elections, and under various circumstances, some aspects of state elections as well.

It is possible that the misreading of that dissenting statement in Oregon was due to the diplomatic way in which Justice Hugo Black, in writing the majority opinion, disagreed with his “Brother Harlan:”

In short, the Constitution allotted to the States the power to make laws regarding national elections, but provided that if Congress became dissatisfied with the state laws, Congress could alter them … On the other hand, the Constitution was also intended to preserve to the States the power that even the Colonies had to establish and maintain their own separate and independent governments, except insofar as the Constitution itself commands otherwise. My Brother HARLAN has persuasively demonstrated that the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections. My major disagreement with my Brother HARLAN is that, while I agree as to the States' power to regulate the elections of their own officials, I believe, contrary to his view, that Congress has the final authority over federal elections.

As to the power of Congress to interfere in state elections, Justice Black wrote,

It is obvious that the whole Constitution reserves to the States the power to set voter qualifications in state and local elections, except to the limited extent that the people through constitutional amendments have specifically narrowed the powers of the States. Amendments Fourteen, Fifteen, Nineteen, and Twenty-four, each of which has assumed that the States had general supervisory power over state elections, are examples of express limitations on the power of the States to govern themselves.

Shelby is not the first time a Supreme Court decision has erroneously described the terms and application of the Tenth Amendment, which has been controversial since before it was added to the Bill of Rights at the time of the ratification of the Constitution. In 1918, the Supreme Court, in Hammer v. Dagenhart, 247 US 251 (1918) declared unconstitutional an act of Congress designed to restrict child labor. The court cited an obscure Civil War era case that erroneously stated in dictum that the Tenth Amendment reserved powers to the states ”not expressly delegated to the national government.” (Italics added. The word “expressly” is not in the Tenth Amendment). Mistakes of the Court can have long-term consequences. It was 21 years before the Court overruled Dagenhart and finally enabled the federal government to regulate child labor, 100 years after it was done in Great Britain.

The Tenth Amendment was included in the Bill of Rights, the first ten amendments, by the insistence of many who feared that the new national government would become tyrannical. Two of the three authors of the Federalist, James Madison, the “architect” of the Constitution, and Alexander Hamilton, one of the principal advocates of a strong national government, believed that the other amendments in the Bill of Rights provided the necessary safeguards against tyranny, but agreed to include it as a compromise. However, as with most of the Constitution, it was carefully worded. A similar clause was in the Article of Confederation, but it was more specific, reserving powers to the states “not expressly delegated” to the national government. That provision was one the major factors in the lack of effectiveness of the national government under the Articles of Confederation that almost led to dissolution of the union.

The principal purpose in writing a new Constitution in 1787 was to strengthen the national government and thus preserve the nation. Madison particularly was concerned that the states might weaken the national government, as they had under the Articles of Confederation. He did not want the state governments involved in the national government, or to have any say about its operation. Consequently, the decision was made to exclude such specific language as “expressly” or “specifically” from the Tenth Amendment. However, that has not prevented others from reading that language into it, as Chief Justice Roberts did in his opinion.

There is another error in the Chief Justice's statement. The reservation of powers is not just to the states, and it is not to the “citizens.” It is “or to the people.” The use of the term, “the people” has special meaning in the Constitution. It is first used in the Preamble, “We, the people of the United States...” (Note, not “these” United States as we frequently hear from politicians, including President Obama, today). The ratification of the Constitution was required to be done by “the people” in state conventions. The authors of the Constitution did not want it ratified by the states, or the state legislatures. The Constitution was to be an agreement among the people of the United States that bound them, their descendants, and their state governments to its terms. Justice Story, in his landmark opinion in the 1816 case, Martin v. Hunter's Lessee, 1 Wheat (14 US 304) (1816), wrote that the Constitution was the work of the people, and as a result had a higher sovereignty than that of the states. He wrote,

The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by "the people of the United States." There can be no doubt that it was competent to the people to invest the general government with all the powers which they might deem proper and necessary, to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there be that the people had a right to prohibit to the States the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact, to make the powers of the State governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to delegate to either.

Governeur Morris, the author of the Preamble and nicknamed the “Penman” of the Constitution, chose the words “the people” over alternative proposals that would have used terms such as “we the states,” because he intended the national government to derive its sovereignty from the people, not from the states.

If properly interpreted under standard statutory construction, the phrase “or to the people” modifies the entire Amendment. The reservation to the states is not exclusive. “The people” are alternative recipients of the reserved powers. This was a very clever bit of draftsmanship. The people, as the Constitution treats that term, are the people of the United States, not of any individual states. The Constitution originally gave the states the power to determine citizenship, but that right was taken away from the states and given to Congress by the 14th Amendment. That Amendment defined the people as citizens of both the United States and of the states where they reside.

Their national and state governments are representative democracies, called the “republican” form of government in the Constitution, which requires the national government to guarantee to the people that their states have the republican form of government. That clause, combined with the Supremacy Clause, and the Necessary and Proper clause, clearly give the national government, which is governed by the “people” through their elected representatives, and the elected President, the right to interfere with the sovereignty of the states. The Tenth Amendment not only does not modify that power, it strengthens it.

Thus, it can be argued rationally that there really is no grant of powers to the states in the Tenth Amendment different from any available to the national government. In the 1941 decision, United States v. Darby Lumber Co. 312 US 100 (1941) Chief Justice Harlan Fiske Stone said the Tenth Amendment was “but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.”

Conservative members of the Court, beginning with William Renquist, before he became Chief Justice, have attempted to revive the Tenth Amendment in the way it was used by states' rights advocates before the Civil War, as creating a body of state sovereignty and states' rights, and as a way of limiting the federal government. The one modern case where it actually was at least part of the basis of a decision, National League of Cities v. Usery 426 US 833 (1976) resulted in so much legal confusion that the Court found it had to specifically reverse itself in Garcia v. San Antonio Metropolitan Transit Aauthority. 469 U.S. 528 (1985).

Justice Blackmun, who had voted with Renquist in National League of Cities, changed his mind, and wrote the majority opinion in Garcia. He summarized the reversal of National League of Cities:

We therefore now reject, as unsound in principle and unworkable in practice, a rule of state immunity from federal regulation that turns on a judicial appraisal of whether a particular governmental function is "integral" or "traditional." Any such rule leads to inconsistent results at the same time that it disserves principles of democratic self-governance, and it breeds inconsistency precisely because it is divorced from those principles. If there are to be limits on the Federal Government's power to interfere with state functions — as undoubtedly there are — we must look elsewhere to find them.

The Tenth Amendment has not been used as the basis of any Supreme Court holding since, but it periodically is mentioned in dictum, as in the Shelby case.

The Court should be careful what it wishes for. The Constitution does not specifically grant the power to overturn acts of Congress to the Supreme Court, nor does the Judiciary Act of 1789 that structured the Court. That power of the Supreme Court was asserted by Chief Justice John Marshall in Marbury v. Madison 5 US 137 (1803). There was opposition to that ruling for much of the time before the Civil War, especially in the South. Advocates of states’ rights argued that the Tenth Amendment gave the states the power to nullify acts of Congress instead of the Supreme Court. South Carolina's John Calhoun, the leading exponent of the doctrine of nullification, vigorously opposed that position of the Court, arguing that the power to reject Acts of Congress as unconstitutional lay with the states.

Nullification finally was ruled unconstitutional in Cooper v. Aaron, 358 U.S. 1 (1958). However, in recent years The Tenth Amendment Center, an organization supported by an alliance of libertarian, right-wing, and neo-Confederate groups, has been attempting to resuscitate the Tenth Amendment not only to limit the powers of the federal government, but also to erode the power of the Supreme Court. By attempting in Shelby and Northwest Austin to invent a doctrine of “equality of sovereignty,” and to revive the Tenth Amendment as a restriction on the national government, Chief Justice Roberts risks opening a Pandora's Box of dangerous and evil outcomes he almost surely would regret.

One of the most famous debates ever held in the United States Senate occurred in 1830 when Massachusetts Senator Daniel Webster, who had achieved fame as an attorney arguing many cases before the Supreme Court, squared off against South Carolina Senator Robert Hayne over the claim of South Carolina's right of nullification. It actually was a speech primarily pointed at Vice-President Calhoun. Webster's speech of several hours decimated the advocacy of states' rights, and eloquently and powerfully summarized the spirit of a united people as citizens of the United States of America. A portion of that speech became required memorization for several generations of school children across much the nation, helping to create a national identity. Today, on the website of the U.S. Senate it is described as the most famous speech in the history of the Senate:

The people, then, Sir, erected this government. They gave it a Constitution, and in that Constitution they have enumerated the powers which they bestow on it. They have made it a limited government. They have defined its authority. They have restrained it to the exercise of such powers as are granted; and all others, they declare, are reserved to the States or the people. But, Sir, they have not stopped here. If they had, they would have accomplished but half their work. No definition can be so clear, as to avoid possibility of doubt; no limitation so precise, as to exclude all uncertainty. Who, then, shall construe this grant of the people? Who shall interpret their will, where it may be supposed they have left it doubtful? With whom do they repose this ultimate right of deciding on the powers of government? Sir, they have settled all this in the fullest manner. They have left it with the government itself, in its appropriate branches. Sir, the very chief end, the main design, for which the whole Constitution was framed and adopted, was to establish a government that should not be obliged to act through State agency, or depend on State opinion and State discretion. The people had had quite enough of that kind of government under the Confederation. Under that system, the legal action, the application of law to individuals, belonged exclusively to the States. Congress could only recommend; their acts were not of binding force, till the States had adopted and sanctioned them. Are we in that condition still? Are we yet at the mercy of State discretion and State construction? Sir, if we are, then vain will be our attempt to maintain the Constitution under which we sit.

What can be done now? Will Congress fix the Voting Rights Act? That seems unlikely in the near future. However, contrary to many initial reports, the Supreme Court did not leave the Voting Rights Act without any teeth. It still is unconstitutional for states to discriminate in their voting laws. In Section 3c there is what is called the “pocket trigger” that provides a means by which state and local governments can be brought under preclearance of the Justice Department and the federal court in Washington if they do act unconstitutionally.

Section 3c has been used numerous times to bring additional jurisdictions under preclearance. Most of the time that has happened through consent decrees because the local jurisdictions want to avoid litigation that can cost millions of dollars. These preclearances usually are more limited in scope, and in time, than those under Section 4 that was thrown out by the Supreme Court. They usually apply only to specific actions, such as voter ID laws, or redistricting plans, and not to minor changes in laws and regulations, and have a limit of just a few years. They seem to address some of the issues the Court raised about Section 4, and thus might withstand constitutional challenges.

The problem with 3c is that it requires a showing both of intent to discriminate and an effect of actual discrimination. Intent can be hard to prove. Not every state has a Republican leader as senseless as the one in Pennsylvania who said, after the Republican-controlled state legislature passed a voter ID law, that they had just given the state’s electoral votes to Mitt Romney.

Action has begun to start utilizing 3c as a replacement for Section 4. The first battleground in Texas, where state officials announced they would implement their voter ID law and redistricting plan right after the Court announced its Selby decision. Both are considered discriminatory and were being blocked by the Justice Department in federal court in Washington. The state has filed a brief to dismiss the Justice Department’s preclearance block, but opponents have replied with a request to move the action under Section 3c.

Section 3c permits actions to be brought by injured parties as well as the Justice Department. In addition to the suit in the federal court in Washington, a group in Texas now has filed suit in Texas Federal District Court to apply Section 3c to the Texas voter ID law and redistricting plan. Almost certainly legal action will be brought under 3c in almost any state previously covered by preclearance that now tries to enact discriminatory voter laws and regulations.

The actions of the people in Texas can be followed at txredistricting.org. The previously cited 2009 Yale Law Journal has an excellent description of the working of 3c. .

Meanwhile, law reviews across the country are going to have a field day with the Shelby decision. It should rank with some of the Court's most notorious past decisions, among them, Dred Scott v Sandford 60 US 393(1857), that validated the Fugitive Slave Law, Plessy v. Ferguson 163 U.S. 537 (1896) that approved “separate but equal,” Lochner v New York 198 US 45 (1905) that threw out a law that attempted to protect bakers from being forced to work more than 60 hours a week because the Court said it violated their right to contract, the previously cited Hammer v. Dagenhart case that misquoted the Tenth Amendment and prevented the federal government from restricting child labor, and Citizens United v FEC 558 US 310 (2010) that unleashed a flood of private and secret money into American elections.

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