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The Effect of NAMUDNO on the Right to Vote Amendment

by Tyler Ray // Published June 19, 2009
The looming decision by the Supreme Court in the case NAMUDNO ( Northwest Austin Municipal Utility District #1 v. Holder) has many fearing that section 5 of the Voting Rights Act (VRA) will be repealed, and that there will be no protection against states for enacting racially discriminatory voting laws that disenfranchises minority voters. I hope that section 5 will not be overturned, but am exploring whether passage of an amendment in the Constitution along the lines of H. J. Res. 28 would be an appropriate response to this potential Supreme Court decision. In the event that section 5 is overturned I find it interesting to discuss the repercussions that could result.

Should the Supreme Court finds section 5 unconstitutional, the Right to Vote Amendment could replace it as a barrier to discrimination by providing every citizen 18 years of age with the right to vote. The language of HJ Res. 28 includes:

. . . the right to vote shall not be denied or abridged by the United States, any State, or any other public or private person or entity, except that the United States or any State may establish regulations narrowly tailored to produce efficient and honest elections . . .
This language would prevent states from enacting discriminatory qualifications, prerequisites, standards, practices, or procedures that inhibit the right to vote on account of race, or any other form of discrimination.  The requirement for approval by the Justice Department for proposed voting laws by certain states and counties with a history of discrimination under section 5 would be replaced with a constitutional amendment guaranteeing every citizen 18 years of age or older with the right to vote.  Any law that would appear to be discriminatory would be overturned since every citizen would have the right to vote, and election performance standards established by Congress would be designed to ensure fair and honest elections. In essence each state would have to comply with a universal right to vote standard instead of the "separate but unequal" standards that are now in place state by state. Each state would however be granted a right to "establish regulations narrowly tailored to produce efficient and honest elections", but states would not be able to create discriminatory laws that prevent certain citizens from voting.

The Right to Vote Amendment would go beyond anything that the VRA currently protects- protecting suffrage rights of U.S. citizens in a myriad of ways-while still protecting discrimination based on race that section 5 prevents now. It would ensure that there be a universal standard for ensuring the right to vote and eliminate the state by state or county by county decision making for voter rights regulations.  In the unfortunate outcome that the VRA or some part of it is overturned it's time to consider a serious movement to finally pass the Right to Vote Amendment.