Thursday, January 16, 2014

Shelby County's impact on voting rights policy will likely be 'deeply destabilizing,' argue Profs. Charles and Fuentes-Rohwer

In State's Rights, Last Rites, and Voting Rights, Professors Guy-Uriel E. Charles and Luis E. Fuentes-Rohwer examine the likely consequences of the Supreme Court's decision in Shelby County v. Holder striking down section 5 of the Voting Rights Act (VRA). Here's the abstract:

There are two ways to read the Court's decision in Shelby County, as a minimalist decision and as a decision that has undermined the basic infrastructure of voting rights policy, law, and jurisprudence. In this Essay, we present the case for reading Shelby County as deeply destabilizing. We argue that Shelby County has undermined three assumptions that are foundational to voting rights policy, law, and jurisprudence. First, the Court has generally granted primacy of the federal government over the states. Second, the Court has deferred to Congress particularly where Congress is regulating at the intersection of race and voting. Third, the Court and Congress have understood that racial discrimination is the problem and have operated from a similar conception of what racial discrimination means. Shelby County undermines all three assumptions. We explore what this means for voting rights policy, law, and jurisprudence going forward.

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Dred Scott comes to mind. Congress in recent years re-enacted the provision of the Voting Rights Act in question. The 15th Amendment has a provision which authorizes Congress to enact legislation to enforce the Constitutional provision. So does the 14th Amendment. The best way to describe the Roberts Court, and the kindest description, is Unreconstructed. That they are. But, the Executive can still prosecute any case it deems worthy. History will be harsh on the Roberts Court. The Executive needs to be pro-active. As to Roberts himself, I could quote Curley from the Three Stooges when he started off with Hot sie Totsie... but I will refrain.

Posted by: Liberty1st | Jan 16, 2014 10:27:38 AM

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