Equal Sovereignty: From Dred Scott to Driver’s Licenses

By: Charles McGonigal*

On Friday, Alabama closed thirty-one Department of Motor Vehicles (DMV) offices. These closings wouldn’t normally be national news, but Alabama has selectively closed offices in counties with high populations of people of color, leaving no facilities in those counties to issue driver’s licenses. As photo IDs are now required to vote in that state, these actions threaten the ability of individuals in these counties to exercise their right to vote. Alabama’s latest trampling of voting rights owes its (hopefully temporary) existence to Chief Justice John Roberts’ activist invocation of a non-Constitutional doctrine associated with Dred Scott.

Under the 1965 Voting Rights Act[footnote]1. The history of the Voting Rights Act and Shelby County is summarized from Ryan Haygood’s excellent article published by HLPR in August, including discriminatory actions by Alabama since 1965 and other states since 2013.[/footnote], the U.S. Justice Department must preclear any changes to voting rules in several states with histories of discrimination. The Act’s drafters correctly expected state officials to find novel ways to keep minority voters away from the polls. Preclearance ensured that protracted legal battles would delay implementation of such changes rather than their removal.

Chief Justice Roberts, in 2013’s Shelby County, Alabama v. Holder, found the Act’s definition of historically discriminatory jurisdictions unconstitutional partly because it violated the “equal sovereignty” doctrine, which holds that every state has fully equal rights and powers. This doctrine is outside the Constitution’s text. In fact, the Constitutional Convention rejected such a  clause, although it has been included in statutes admitting each state. It only came into constitutional jurisprudence in Dred Scott v. Sandford, which held that allowing black Americans full citizenship would violate slave states’ equal sovereignty. Because equal sovereignty is only a historical tradition, it makes a tenuous basis for the unconstitutionality of a statute, especially considering Congress’ in-depth review of the Voting Rights Act in its 2006 re-authorization.

To be fair, Alabama is offering plausible reasons for the office closures. The state’s budget was slashed across the board, also resulting in the closure of several parks and National Guard armories. While the legislature did include budget language urging departments to cut administration instead of services, DMV administrators unsurprisingly chose not to cut their own staff members. Instead, they closed a disproportionate number of DMV offices in areas that are generally poorer and have majority African-American populations.

Even if deprivation of the vote was not the purpose, Alabama’s actions will certainly have a disparate impact on minority and poor populations. The 28 counties that no longer have a DMV office include 8 of the 10 counties with the highest minority populations in Alabama and 14 of the 20 poorest counties in the state. Voters with lower socio-economic status have less ability to travel to another county to get an ID, especially if they have to take off work during regular business hours. Slightly less negatively, one aspect of these closures is that the reduction in services is not huge as the satellite offices were previously staffed only on days when district offices could send employees.

The combination of voter ID requirements and the removal of DMV offices creates a disparate impact. This combination will be subject to a court challenge and eventually overturned as it is impeding the constitutional rights of Alabama voters. Hopefully, this example (among too many others) will demonstrate to the Court that preclearance is unfortunately still necessary for equal voting rights. Without preclearance, though, the new procedures will remain in place while the challenge slogs through the courts.

* Charles McGonigal is a second year law student at Harvard Law School.

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