Former Attorney General Alberto Gonzales has taken to the airwaves of public radio to talk Shelby. In the interview, he became the first Republican who has urged a fix to Section 4 of the Voting Rights Act by enactment of a new coverage formula. That places him on this side of the many Democrats in Congress who are determined to pass a new coverage formula.
A couple of other thoughts – the Attorney General does not have standing to assert a Constitutional claim, as inferred in the interview. Moreover, a Section 2 case does not require proof of racial intent. It might, but it is not required. So the comments in the interview regarding this burden were not accurate.
Key snips:
GONZALES: I’m not suggesting that the department should not take advantage of the Voting Rights Act when they see racial discrimination in the voting context. That opportunity, or that authority, still existed irrespective of the decision in the Shelby case. They could have brought an action under Section 2 of the Voting Rights Act. They could have alleged a Constitutional violation under Article 14 or Article 15 of the Constitution.
No, I think I agree that the Department of Justice has an obligation, when they believe that voting rights are being infringed based upon race, that’s unlawful, and they have an obligation to enforce the law and to enforce the Constitution. And the question is, what is the best way to do that? In the past, it was much easier to enforce civil rights laws under Section 5. It was prospective. It gave the department an opportunity to step in, to weigh in, before a law actually took, went into effect. Now Section 2 was still available. Section 3 was available.
But those are much harder for the department, because what it does, it requires the department to wait until the laws are actually passed. They go into effect, and the department has to go in and show that, in fact, the intent of the law was to discriminate based upon race. The standard is much easier under Section 5, and that’s why the decision in the Shelby case was extremely important in terms of civil rights enforcement.
I think the best outcome here is for Congress to pass legislation to update the formula in Section 4. That then makes Section 5, once again, enforceable, and the Department of Justice has the preclearance authority that it had before the Shelby case. Now, unfortunately, because of the politics that exist in this country, you know, I’m not very optimistic that Congress is going to pass a law to update the formula in Section 4.