Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v. Holder

Source: James Uriah Blacksher, Lani Guinier, Harvard Public Law Working Paper No. 14-21, February 23, 2014

From the abstract:
The “equal sovereignty” principle the Supreme Court majority relied on in Shelby County v. Holder to strike down the coverage formula in Section 4 of the Voting Rights Act is rooted in the jurisprudence of slavery. In the infamous 1857 case of Dred Scott v. Sandford, Chief Justice Roger Taney held that black Americans, slave or free, were not members of the sovereign people and could never be “citizens” within the meaning of the Constitution. Otherwise, he said, blacks would be entitled to all the fundamental rights of citizenship guaranteed by the Privileges and Immunities Clause of Article IV, Section 2, including the right to vote, a result that would violate the equal sovereignty of the slave states. Black people, Chief Justice Taney wrote, could only enjoy those rights the sovereign people of each state chose to give them….

….African Americans remained disfranchised in the South until, through generations of bloody sacrifice, they finally got Congress to use its power to enforce the anti-discrimination provision of the Fifteenth Amendment and pass the Voting Rights Act of 1965. At first the Supreme Court upheld Congress’ authority to enact and to re-enact the Voting Rights Act, but eventually it began to push back. Now, in Shelby County, a five-four majority has struck down the coverage formula in the 2006 amendments to the Voting Rights Act, relieving the Southern states from having to obtain federal preclearance before implementing changes in their voting practices. But, by invoking the unwritten doctrine of “equal sovereignty,” Chief Justice John Roberts’ opinion for the Court forces us to revisit the racially discriminatory origins of that doctrine and its role in undermining the Privileges or Immunities Clause.

The authors argue that the appropriate response by Congress to Shelby County would be reasserting its explicit constitutional authority to interpret the Privileges or Immunities Clause. Adoption of the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments and the Court’s repeated acknowledgment of a constitutional right to vote have effectively overruled the Slaughter-House Cases and Minor v. Happersett. The American people of the twenty-first century should demand that Congress enact statutes expressly proclaiming what no one today can deny, that the right to vote is the paramount privilege or immunity of citizenship in the United States. Congress should exercise its Fourteenth Amendment power to enforce the Privileges or Immunities Clause and begin establishing uniform national standards for the administration of all elections, federal, state, and local, that guarantee full access to the franchise for all American citizens.

The 2006 Voting Rights Act had special constitutional stature; it was the first voting rights law in American history passed with the participation of African-American members of Congress from every one of the former Confederate states. Its re-enactment based on Congressional authority to enforce the right to vote under the Privileges or Immunities Clause, rather than on the anti-discrimination provisions of the Equal Protection Clause and the Fifteenth Amendment, would render irrelevant the Supreme Court’s call for comparing the states’ current records of voting discrimination. It would emphatically repudiate the racially tainted equal sovereignty principle relied on in Shelby County and finally renounce the legacy of Dred Scott by proclaiming African-American citizens’ full membership in the sovereign people of the United States.