Voting Rights battle may not end at Supreme Court

In the next week, many experts believe the Supreme Court could strike down a key part of the Voting Rights Act. But a legendary congressman says the fight is just beginning, and that battle could be on the floors of Congress.


Representative John Lewis, a Democrat from Georgia, was part of the movement in the 1960s that led to Congress passing the Voting Rights Act in 1965, with President Lyndon Johnson signing the bill in an iconic photo.

Lewis, 73, spoke at attorney’s convention this week, and he said was ready to fight in Washington if the Supreme Court strikes down a provision that allows the federal government to review voting changes in states and towns with a history of voter suppression.

Lewis spoke about the need of citizens to practice civil disobedience and “get in trouble – good trouble, necessary trouble.”

Related Stories: Voting Rights Act decision expected to be an emotional moment |Key part of Voting Rights Act in peril after Supreme Court session

In 1961, Lewis volunteered to participate in the Freedom Rides, which challenged segregation at interstate bus terminals across the South. He was attacked by angry mobs and arrested nearly 40 times by police during the Civil Rights movement era.

“I think it’s time for all of us once again to get in trouble,” Lewis told the audience.

One attorney told the convention that if the court does strike down the pre-clearance provision in the act known as Section 5, the likely result is that Congress will have to re-write the law.

“If the court goes down that road – and I hope they do not – the important takeaway is that’s not the end of the game. That just puts it all back on Congress’s hands,” said Steven Shapiro, legal director at the American Civil Liberties Union.

Some court watchers see the justices—probably not in a unanimous decision—invalidating Section 5, with Chief Justice John Roberts writing the decision.

In 2009, Roberts indicated his doubts about Section 5 in another court opinion.

“The evil that (Section 5) is meant to address may no longer be concentrated in the jurisdictions singled out for pre-clearance,” Roberts wrote in Northwest Austin Municipal Utility District No. 1 v. Holder.

So what happens if the Voting Rights Act is sent back to the House and Senate to amend?

The National Journal says congressional Republicans have kept a low profile on the issue and their public reaction is far from certain.

“We don’t know yet because Congressional Republicans haven’t weighed in on a pending case although many Democrats submitted amicus briefs on behalf of keeping the law just where it is, including Senate Majority Leader Harry Reid,” said the National Journal’s Matthew Cooper.

The Democrats would likely have a quick response, but changes to the Voting Rights Act would join a jammed-packed agenda in Congress that includes immigration, the budget, gun control, the sequester, the Farm Bill and more laws that have stalled in Washington.

“This Supreme Court is more and more skeptical of the root causes of, the evidence of and the consequences of discrimination,” said Senator Chris Coons last week. And I think we need to be prepared to act legislatively to deal with the likely consequences of a federal government that may be more reigned in in terms of its ability to proactively reach out.”

The website Roll Call also has a review of three scenarios at the court: the justices uphold Section 5, strike down entirely, or strike down part of it and send the law back to Congress.

The ensuing fight within Congress would be the law almost inoperable, says Roll Call.

“Congress would probably have to come up with a new system to determine the covered jurisdictions based on current data. A contentious battle would follow on Capitol Hill as lawmakers fought to ensure their states are or aren’t burdened by federal mandate,” says Shira Toeplitz. “As a result, it’s hard to see how Congress would pass anything along these lines, rendering Section 5 unenforceable.”

Another factor is the court’s potential decision in a case about affirmative action, which it apparently decided last October, but hasn’t announced yet, in an opinion likely to be written by Justice Anthony Kennedy.

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