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Supreme Court Justice Anthony Kennedy recently made an important and wise comment when he said that with gridlock plaguing our political system, “A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say.” Considering the controversial history of recent Supreme Court decisions regarding elections, and the pending case regarding the Voting Rights Act, the nine unelected justices should uphold the Voting Rights Act, which was not passed under gridlock but was passed by overwhelming majorities of both parties, in both the House and Senate, including those representing states covered by the act.

scalia and jim crow

In my view the act should be upheld, period. For conservative justices who might be inclined to overturn the act or Section 5 of the act, I would suggest they consider that this would violate the conservative principle against extreme judicial activism. It would violate the conservative principle of avoiding political decisions. It would violate the conservative principle against the unelected judicial branch negating overwhelming agreement of the elected executive and legislative branches, which have substantially more expertise regarding free elections than those of “narrow legal background.”

I would also suggest, and this important, that a court that has taken a highly restrictive position ruling against standing in long lines of (in my view) worthy litigants should consider whether the state of Alabama, which has a long and continuing history of voting rights abuses, should have standing in this case.

The standing issue is important. Chief Justice John Roberts has said it might be advisable for the Congress to update which states should be covered. But as Justice Elena Kagan suggested during oral argument, no matter what formula Congress might devise, Alabama would be covered because of its long and continuing history of voting rights abuses.

Later, picking up this theme, Kennedy asked why Alabama would be injured in this example, because Alabama would arguably be covered by any law. Most media have missed the potential importance of this exchange. I would suggest that Alabama should have far less right to standing in this case than far more worthy litigants (such as women challenging discrimination at work) who have been denied standing by the court.

There are several conservative rationales, then, for upholding the Voting Rights Act — at least until a more worthy litigant emerges. To uphold standing for a litigant whose record is so bad that it would be swept in under any law implies that those who would uphold Alabama in this case effectively oppose all voting rights for any Americans.

Americans have died at home and fought abroad for generations in defense of the right to vote.

With all due respect to Justice Antonin Scalia, it demeans all Americans, all voters, all who fought and died for the right to vote, the massive majorities in the House and Senate who voted for the Voting Rights Act, presidents of both parties who supported the act and all who have defended our country on behalf of our freedom to insult, demean and trivialize the right to vote as a racial entitlement.

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Finally, I commend the substantial body of work supporting the Voting Rights Act on the site of the Alliance for Justice, and encourage readers to visit

One item brought to my attention by the Alliance for Justice is a statement from internationally renowned champions of human rights and democracy, such as Bishop Desmond Tutu from South Africa, reminding us how the noblest aspects of American freedom embodied by the Voting Rights Act inspire champions of freedom throughout the world, as well as Americans throughout our nation.

Our nation, which champions free elections in Iran and North Korea, should defend the right to vote in honest elections here at home.

It would be an historic mistake and profound legal wrong for an unelected court to again interfere in American elections, after many highly controversial political decisions by party-line votes from a hyper-political, hyper-activist court in which the foundations of our two elected branches are dominated by our one unelected branch.

It would violate traditional notions of American jurisprudence and classic notions of traditional conservatism for the unelected branch to again throw out the work of huge majorities of the two elected branches, huge majorities from both parties who supported the Voting Rights Act and elected presidents from both parties who supported the Voting Rights Act that not one president, Republican or Democrat, has ever opposed.

It would unconscionable for the court to tell massive numbers of women who have been victims of gender discrimination that they do not have standing, while holding that a litigant widely acknowledged to have perpetrated voting discrimination does have standing, when the only “harm” that litigant can claim would exist only if the court concludes that no American, anywhere, should have voting rights.

Brent Budowsky

To overturn the Voting Rights Act in this case would violate time-honored notions of American jurisprudence and cardinal values of principled conservatism.

Brent Budowsky
The Hill

Sunday, 10 March 2013