Jurisprudence

Can Congress Salvage RBG’s Voting Rights Legacy?

Pelosi, wearing a stars and stripes mask, walks past a memorial of flowers for RBG.
Speaker of the House Nancy Pelosi arrives to pay her respects at a makeshift memorial for Justice Ruth Bader Ginsburg in front of the Supreme Court on Sunday. Samuel Corum/Getty Images

Justice Ruth Bader Ginsburg was an unparalleled champion of voting rights. One of her most famous dissents in a voting case came in Shelby County v. Holder, the 2013 Supreme Court case holding that Congress no longer had the power through enforcement of the Voting Rights Act to require states with a history of racial discrimination in voting to get federal approval before making changes in their voting rules.

Ginsburg’s Shelby County dissent correctly warned that voter suppression would make a return, with federal voting protection gone. And she said that the ball was in Congress’ court to pass major federal voting rights legislation under the ample powers granted to it in the Constitution. If President Donald Trump follows through with his plan to name Ginsburg’s replacement, vote suppressors will likely be emboldened by a new conservative supermajority on the court. Efforts to make it harder to vote could be supercharged in the years ahead without major action by Congress. A new Democratic Congress may well act to expand voting rights in 2020, but that legislation could face significant headwinds at the Supreme Court.

In Shelby County, Ginsburg famously responded to Chief Justice John Roberts’ claim that federal protection was no longer necessary by stating that “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 umbrella line is a classic for the ages, but there’s another part of Ginsburg’s Shelby County dissent that is equally worthy of mention but gets little attention: her belief that Congress has a great reservoir of power to protect voting rights, a reservoir Democrats must draw from should they take back control of the Senate and the presidency in November.

Ginsburg’s second footnote in Shelby County reads:

The Constitution uses the words “right to vote” in five separate places: the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments. Each of these Amendments contains the same broad empowerment of Congress to enact “appropriate legislation” to enforce the protected right. The implication is unmistakable: Under our constitutional structure, Congress holds the lead rein in making the right to vote equally real for all U.S. citizens. These Amendments are in line with the special role assigned to Congress in protecting the integrity of the democratic process in federal elections.

As University of Michigan Law School assistant professor Leah Litman and I explained in a recent article marking the 100th anniversary of the passage of the 19th Amendment—as part of a Georgetown Law Journal symposium that also featured a conversation with Ginsburg—this sparse footnote is momentous. In it, Ginsburg was offering a thick and muscular reading of the Constitution that provides a road map for greater congressional protection for voting rights.

In footnote 2 of her Shelby County dissent, Ginsburg was saying that we should read the Constitution synthetically as a message of expanding voting rights: for Black Americans, for women, for 18- to 21-year-olds, and for the poor. More than that: Each time that the United States amended the Constitution to expand voting rights, the amendment provided an “enforcement” section giving Congress the power to protect these new voting rights. As Congress passed the 19th Amendment enfranchising women, for example, it specifically rejected a proposal to allow only states to enforce the amendment. The idea was that we need the national government to stop laggard states from discriminating in voting. That was true when Congress passed the Voting Rights Act in 1965, when SCOTUS decided Shelby County in 2013, and today.

Ginsburg’s message that the ball is in Congress’ court on the protection of voting rights must be taken seriously if Democrats retake power in 2020. As I argued in Slate almost 2 years ago, there’s a whole bunch of things Congress could do if the Senate eliminated the filibuster for voting reform:

• Legislation restoring the pre-clearance provisions of the Voting Rights Act using a new coverage formula to satisfy the court’s standard in Shelby County.

• Legislation passed under Congress’ Article I powers to require states to establish independent redistricting commissions using neutral standards for the drawing of congressional district lines.

• Legislation admitting Puerto Rico and D.C. as states in the union, creating four more Senate seats and enfranchising millions of American voters.

• Legislation giving greater voting rights to American citizens living in U.S. territories.

• Legislation establishing automatic voter registration for congressional elections, complete with a national registration system that would both ensure that eligible people are registered to vote and that ineligible people are kept off the rolls.

• Legislation establishing generous public financing for elections (perhaps through the use of campaign finance vouchers), barring foreign interference in U.S. elections, requiring greater transparency in political giving, and limiting contributions to independent groups like super PACs.

Over the past several years, Ginsburg surely saw that it was increasingly going to fall to Congress to protect voting rights because the Supreme Court simply would not. In one of her last dissents earlier this year, Ginsburg lamented the decision of the Supreme Court majority not to extend the time for Wisconsin voters to return absentee mail ballots during the April 7 primary conducted in the midst of a pandemic: “Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own,” she wrote. “That is a matter of utmost importance—to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation.”

The Wisconsin case shows that we cannot trust the states to adequately protect voting rights. But it also shows another impediment to reform: The Supreme Court has already shown itself unwilling to be the voting rights champion Ginsburg urged. And in Shelby County, it took a narrow view of congressional power to protect voting rights.

If a new Democratic Congress and president go big and bold on voting rights, the big question will be whether the Supreme Court will rule against those protections. The court could say, as it did in Shelby, that Congress is exceeding its powers to enforce the voting rights amendments. It might block a revived Voting Rights Act that the country so desperately needs. And a court with another conservative justice would be even more likely to do that.

If the Supreme Court kills voting reform, a movement to amend the Constitution so as to provide affirmative protection for the right to vote, or changes to the composition of the Supreme Court itself, may be the only ways to fully protect voting rights in the way Ginsburg envisioned and the Constitution demands.