Following up on my earlier post, and for the record, my own view is that we badly need a Voting Rights Act designed for the twenty-first century. Based on the November 6 federal and state elections, it seems clear beyond peradventure that problems with unequal voting rights are not limited solely to denials that relate to race or only occur in jurisdictions presently covered under section 5 of the Voting Rights Act. Ohio, for example, featured multiple overt efforts to make voting easier for some citizens than others—efforts that had to be thwarted by the federal courts. Pennsylvania’s legislature adopted a strict photo-ID requirement that the Pennsylvania state courts, at the eleventh hour, invalidated. Had this law been in force, literally hundreds of thousands of Pennsylvania voters might well have been disenfranchised.
My point is simple but important: problems in the rules and machinery of our elections are not limited to race-based denials or abridgments of voting. Nor are the problems specific to the states of the former Confederacy. Partisan efforts to deny voting rights based on party identification, economic class, and urban residency appear to be all too commonplace. To be sure, federal courts can and will hear suits and grant relief under the Fourteenth Amendment, but Congress ought to consider enacting legislation aimed at preventing such violations before they occur. Indeed, the Voting Rights Act is arguably both over-inclusive (surely some covered jurisdictions would, if left to their own devices, not attempt to deny or abridge the voting rights of minority citizens) and also seriously under-inclusive (jurisdictions not covered by section 5, such as Ohio and Pennsylvania, plainly seek to make voting harder for some state citizens than for others). Congress can and should act to address this problem via its power to enforce the Equal Protection Clause of the Fourteenth Amendment.
Moreover, Congress’s powers in this area are not, strictly speaking, limited to enforcing the Fourteenth or Fifteenth Amendments. The Constitution grants broad authority to Congress with respect to federal elections for Congress. See U.S. Const., art. I, section 4, clause 1 (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”). Accordingly, questions relating to early voting, voting by mail, and the like could be determined by Congress (at least for House and Senate elections). Although the Constitution gives the states great discretion to structure the selection of presidential electors, see id. at art. II, section 1, clause 2 (“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”), it is doubtful that states would exercise this discretion by conducting dual elections, with one set of rules governing congressional races and another for state, local, and presidential electoral contests.
Voting constitutes a fundamental right for purposes of applying and enforcing the Equal Protection Clause (so holds Bush v. Gore, by a 7-2 margin, and numerous other precedents). Simply put, the protection of voting rights in the twenty-first century should not be limited to addressing the problems of the twentieth century. Given the clear lessons of November 6—and regardless of whether the Supreme Court forces Congress to act by invalidating section 5 in the Shelby County v. Holder case—Congress should take a careful and comprehensive look at the problem of state efforts to deny or suppress voting rights.