If a leading conservative scholar and former judge were now on the Supreme Court instead of Chief Justice Roberts or Justice Alito, it is likely that the Voting Right Act would remain intact.
Judge Michael McConnell was a leading conservative law professor at the time President George W. Bush named him to the United States Court of Appeals for the Tenth Circuit in 2002 (he’s since left the bench to return to the legal academy at Stanford Law School). McConnell was also widely viewed as a possible Supreme Court nominee during the Bush Administration.
In an interview with NPR’s Nina Totenberg, McConnell has harsh words for the five conservative justices’ recent decision neutering much of the Voting Rights Act — labeling the reasoning that drove that decision “made up.”
Although the conservatives’ decision in Shelby County v. Holder never actually identifies the legal standard of review that led them to strike down the heart of America’s voting rights law, the opinion rests in large part on the fact that the Voting Rights Act applies some of its requirements “only to some States,” in what the Court labels as a “dramatic departure from the principle that all States enjoy equal sovereignty.”
As McConnell explains, however, “[t]here’s no requirement in the Constitution to treat all states the same,” adding that “[i]t might be an attractive principle, but it doesn’t seem to be in the Constitution.”
Judge McConnell is, of course, correct. The Fifteenth Amendment provides that “[t]he 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,” and it gives Congress “power to enforce this article by appropriate legislation.” One searches the Constitution in vain for language forbidding the Voting Rights Act application of some of its strongest medicine to jurisdictions judged to have the worst record of voter suppression.
Yet, while the legal assault on voting rights cannot be justified under the Constitution’s text, it has been quite a windfall for conservatives. At least six states are already moving forward with new voter suppression laws now that a key prong of the Voting Rights Act is no longer available to stop them. Texas announced that it would begin suppressing votes just two hours after the Supreme Court handed down its decision.