Justice Ginsburg's Dissent in Shelby County

Justice Ginsburg wrote the lengthy and detailed dissent in today's ruling striking the coverage formula for the preclearance provision of the Voting Rights Act.  She was joined by Justices Breyer, Sotomayor, and Kagan. 

(Our earlier posts on the case are here, here, here, here, and here.  Our oral argument review is here.)

Justice Ginsburg made several points:

• Congressional authority under the Reconstruction Amendments is vast, and Congress is the principal enforcer of equal voting rights under the Constitution.  The Court should defer to Congress in evaluating its enforcement mechanisms--applying rational basis review, under Chief Justice Marshall's famous formulation in McCulloch v. Maryland--and the Court should apply that test even more deferentially for a re-authorization of an act, like the VRA.
• Congress more than did its job in compiling a legislative record of vote discrimination in the jurisdictions covered by Section 4.  Justice Ginsburg carefully recounted this record and some particularly egregious violations in her dissent.
• Shelby County, Alabama, of all jurisdictions, had no business bringing this case.  Shelby County lodged a facial challenge to Sections 4 and 5, yet Shelby County itself is a clear violator--and should be in any coverage formula that Congress might devise.  That means that the coverage formula has at least one valid application--to Alabama--and cannot be struck in a facial challenge.  The VRA's severability provision only buttresses this point.
• "Equal state sovereignty," the backdrop for the Court's ruling, applies only to the conditions on states for admission to the Union, not differential treatment outside that context.  Justice Ginsburg understates: "Today's unprecedented extension of the equal sovereignty principle outside its proper domain--the admission of new States--is capable of much mischief."
• Preclearance, with the now-struck coverage formula, itself is responsible for the improvements that the Court cites in voting practices.  Without it, we face retrogression--that is, falling back into patterns of racial discrimination in the vote.  "In the Court's view, the very success of Section 5 of the Voting Rights Act demands its dormancy."

SDS