Motley Moose – Archive

Since 2008 – Progress Through Politics

“The Congress shall have power to enforce this article by appropriate legislation.”

Those words (or some slight variation on them) are found in many constitutional amendments to formally enable the Congress to enact legislation to give those amendments meaning.  Among those amendments that possess these words are the Fourteenth, Fifteenth, Nineteenth and Twenty-Sixth, which form the basis of the constitutional guarantee of the right to vote.  It seems that Chief Justice Roberts and the four other justices that joined him in today’s tragic opinion ignored those very basic words.  Perhaps they need a basic refresher in the words of the Constitution.  I’ll start with the Fourteenth Amendment below the fold.

14th Amendment, Section 2:

But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state. (all emphasis my own)

This right is further expanded and entrenched via Section 1 of the 15th Amendment:

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.

The right to vote is then further expanded via the 19th Amendment:

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 sex.

Finally, the 26th Amendment further expands that right to create the modern-day voting pool:

The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

In each instance, Congress is given the authority to enforce these amendments through “appropriate legislation.”  To the extent that states’ rights exist in this area they are limited by the powers granted to Congress to enforce these constitutional provisions.

Please note that this does not completely abrogate states’ rights, nor does it prevent states from having different requirements.  States remain free to further expand their voting pool.  They may choose to grant persons younger than 16 the right to vote.  They may choose to grant convicted criminals, including those currently serving their sentences, the right to vote.  They may choose to give non-citizens the right to vote.

Both the 14th and 15th Amendments are part of the Reconstruction Amendments.  They were specifically enacted to limit states’ rights in these areas after various mechanisms attempted by southern states to prevent freed slaves from voting.  It is under this authority, where the states, through the ratification process, clearly delegated power to the federal government, that the Voting Rights Act was enacted.

Today’s ruling is an absolute travesty that ignores history and facts, as well as the clear rationale and wording of these amendments.  There is a reason that the Voting Rights Act was enacted and there is a reason that it remains relevant to this very day.  Ignoring this will merely exacerbate the problem and demonstrate exactly why its key provisions are necessary.  To quote Justice Ginsburg (and I’m proud to say she’s a fellow Brooklynite):

Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet

The exact problem that five members of the Supreme Court claimed today was largely solved will soon rear its ugly head with greater force when the most effective remedy to prevent it has been removed from the government’s cache of tools.  Perhaps by the time that the first of what are likely to be many actions after the fact for various attempts to illegally suppress voting rights there will exist a majority on the Supreme Court to overturn today’s egregious ruling.


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