The Truth About Justice Stevens and the Voting Rights Act

October 11, 2013

The Wall Street Journal published an editorial about voting rights Tuesday titled “Eric Holder’s 2014 Racial Politics.” The gist of the piece, as the headline suggests, is that the Attorney General is solely to blame for the “racial polarization” that is animating so much of the political and legal debate over the Voting Rights Act after the United States Supreme Court gutted its preclearance provision in June.

The working theory of the piece is that the pushback against voting restrictions last year helped “drive Democratic voter turnout among minorities in 2012,” and that by filing federal civil rights lawsuits under Section 2 of the Voting Rights Act, the Attorney General is seeking “a repeat in 2014.” The article contains no mention of recent statements by lawmakers in which they concede that their restrictive new voting laws had racial implications.

Nor does the article acknowledge what common sense tells us to be true—that voters don’t appreciate the threat that partisan officials will try to take their vote away—or make it materially harder for them to vote, suddenly, after they have voted for years without incident. Indeed, there is plenty that is warped about the Journal’s perspective on this topic. But let me focus on just one thing. In support of their argument that North Carolina’s dubious new voting rules are constitutional, the editorial writers offered this:

Courts have already reviewed similar laws in other states and found them legal. In 2008, in a 6-3 decision written by liberal former Justice John Paul Stevens, the Supreme Court upheld the constitutionality of Indiana's voter ID law….

The worst argument against such laws is that they must be racially motivated because there is so little evidence of voter fraud. Yet no less that former Justice Stevens said in his opinion in the Indiana case that "flagrant examples of such fraud in other parts of the country have been documented throughout this nation's history by respected historians and journalists, [and] that occasional examples have surfaced in recent years."…

But what the editorial writers didn’t tell their readers—what is plainly relevant, it seems to me-- is that Justice Stevens has been a fierce and public critic of the Court’s decision in Shelby County v. Holder, the decision that has enabled states like North Carolina (and Texas and Florida) to move so decisively this to try to disenfranchise voters. Less than one month after Shelby County, for example, Justice Stevens, writing in The New York Review of Books, blasted the Court’s conservative majority for usurping Congress’s primary role in policing the pernicious role that prejudice plays in voting. Justice Stevens quoted Justice Antonin Scalia, who struck down Section 4 of the Voting Rights Act while voting to uphold Section 3 of the Defense of Marriage Act. In doing so, Justice Stevens noted the irony of the following quote from his former colleague:

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court's errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

Justice Stevens cannot plausibly be cited today for the proposition that North Carolina’s oppressive new voting laws are justifiable by virtue of some form of voter fraud that North Carolina officials have never been able to prove. Nor can he be cited today for the notion that Sections 4 and 5 of the Voting Rights Act, neutered in June, had outlived their usefulness because “things have changed in the South” since the passage of the federal law. He likely had no idea when he voted in 2008 to uphold that Indiana voter identification law that officials of one party would use it to try to restrict the voting rights of members of the other party.

It should be clear, even to The Wall Street Journal, that Justice Stevens would have voted to uphold the statute, and Section 4, and that if he had been able to do so he would have been the only Republican-appointee on the Court to uphold the law. This is not just a sign of the former justice’s political moderation and judicial humility it is also a sign of how radical the Court’s current conservatives are when it comes to acknowledging the “racial polarization” that seems, if anything, to be growing in this country. Blaming Attorney General Holder for this sad trend is like blaming the firefighter for the blaze just before he goes into the burning building with his axe and hose.

The views expressed are the author's own and not those of the Brennan Center for Justice.

(Editor's note: This post was updated on October 12)