In Shelby County v. Holder, the Supreme Court struck down the coverage formula of the Voting Rights Act of 1965 (VRA). Under the formula, states or their political subdivisions are “covered jurisdictions” if they maintained in the 1960’s and early 70’s tests or devices (e.g., a literacy test or moral character requirement) as a prerequisite for voting and had low levels of voter registration or turnout. If a state is a covered jurisdiction, no change in voting procedures can take place unless it is “precleared” by the attorney general of the United States or a panel of three federal judges. Under the preclearance provisions, a covered jurisdiction bears the burden of showing that the change in voting procedures would have neither the purpose nor the effect of abridging the right to vote on account of color.
In 2006, Congress, with the support of President George W. Bush, reauthorized the VRA for an additional 25 years, leaving the coverage formula in place. They also made it harder for covered jurisdictions to gain preclearance by prohibiting voting changes that would, in the eyes of the federal government, diminish the ability of blacks and Hispanics “to elect their preferred candidates of choice.”
As of June, the following were covered jurisdictions under the VRA: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia, and certain counties of North Carolina, Florida, California, New York, South Dakota, and Michigan.
Fed up with being held to a standard different from the majority of the United States, Alabama’s Shelby County brought a challenge to the constitutionality of the preclearance requirement in Section 5 of the VRA. Shelby County lost in the district court and the court of appeals. It then petitioned the Supreme Court for review.
In examining the VRA, the Supreme Court began by noting that a law imposing “current burdens . . . must be justified by current needs.” It recognized that states are equal sovereigns and should be treated with equal dignity absent an extraordinary situation calling for drastic measures. An extraordinary situation existed in the mid-60’s, the Court noted, when multiple states enacted requirements specifically designed to prevent blacks from voting:
Shortly before enactment of the Voting Rights Act, only 19.4 percent of African-Americans of voting age were registered to vote in Alabama, only 31.8 percent in Louisiana, and only 6.4 percent in Mississippi. Those figures were roughly 50 percentage points or more below the figures for whites.
Based on this situation, the Court continued, Congress properly exercised its constitutional authority under the 15th Amendment. This amendment declares that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” It further provides that Congress has the “power to enforce this article by appropriate legislation.”
Almost 50 years have passed since Congress addressed discrimination that was inconsistent with the promises of the 15th Amendment. Today, things are much different. In covered jurisdictions, voter registration for blacks and whites is roughly the same. Tests and devices that blocked access to the ballot have been forbidden across the country for more than 40 years. The covered jurisdictions have more black officeholders as a proportion of the black population than do the others. In fact, there has been a 1,000-percent increase since 1965 in the number of black elected officials in the six states originally covered by the VRA.
But when reauthorizing the VRA in 2006, Congress and President Bush acted as if nothing had changed. Coverage under the VRA, in the Court’s words, was still “based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s.” If Congress is determined to impose greater burdens on states enjoying equal sovereignty, it “must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.” If it cannot do so, then it must let preclearance be a thing of the past.
The usual suspects excoriated the Court for the Shelby County decision. Jesse Jackson told reporters that “in 1965 we won the right to vote, [but] this court in 2013 took it back.” Al Sharpton averred that “[w]hat they just done is really revoked a lot of what Dr. King’s dream was all about.” Writing for The Atlantic, Andrew Cohen, a Brennan Center fellow, claimed that the Court “didn’t just rescue one recalcitrant Alabama jurisdiction from the clutches of racial justice and universal enfranchisement” but enabled “virtually every Southern county” to “impose restrictive new voting rules on minority citizens.”
Jackson & Co. refuse to accept that race relations have improved over the past 50 years because the attitudes of the people have changed. Instead, they contend that, but for federal statutes and bayonets, 2013 would be 1965 all over again. This is essentially what the government argued when it defended the VRA’s preclearance provisions in Shelby County. The government conceded that there have been improvements, but only because Section 5 of the VRA was still in force. The High Court correctly observed that
Under this theory . . . § 5 would be effectively immune from scrutiny; no matter how “clean” the record of covered jurisdictions, the argument could always be made that it was deterrence that accounted for the good behavior.
The Court’s four liberal justices dissented. Writing for her colleagues, Justice Ruth Bader Ginsburg complained that the VRA “surely has not eliminated all vestiges of discrimination against the exercise of the franchise by minority citizens.” Until such a state of earthly perfection is reached, Ginsburg implied, preclearance must remain in place. But we are not even close to acceptable conditions, Ginsburg wrote. Racial discrimination in the covered jurisdictions remains serious and pervasive.
As an example of racial animus that exists in the South and other covered areas, Ginsburg specifically cited South Carolina’s voter-identification law enacted in 2011. The South Carolina law requires that voters present a photo ID before being allowed to vote. To satisfy this requirement, voters can present a passport, military ID, driver’s license, or a voter-registration card, which may be obtained free of charge at each county’s election office. Voters who have voted without a photo ID in past elections may continue to do so, but they must sign an affidavit at the polling place and list the reason why they have not obtained a photo ID.
Obviously, this milquetoast legislation is a revival of Jim Crow.
Ginsburg described such laws as “second generation barriers” to minority voting. Andrew Cohen, in an update to his original column criticizing the Shelby County decision, warned readers that there would be a “swift . . . descent into unequal justice” inasmuch as Texas and North Carolina announced plans to move forward with voter-identification laws. Although one cannot board a plane or enter a federal courthouse without a picture ID, somehow imposing the same requirement at a polling place is racist.
Of course, states have an interest in preventing voter fraud, and an ID requirement seems to be a rational and unobtrusive way to further this interest.
Ginsburg’s dissent argues that elected members of Congress should have great latitude in determining what “appropriate legislation” is under the 15th Amendment. Considering her career of judicial activism, I am hard pressed to believe that Ginsburg really adheres to one iota of what she wrote on this topic. But it does help us to focus on Congress and how the federal legislature and the President should have acted in 2006 to relieve the covered jurisdictions of the burdens of preclearance. Instead, the House voted 390-33 and the Senate 98-0 to reauthorize the entire VRA. With their eyes fixed on the next election, it was easy for Congress to rubber-stamp this legislation of another era. To do otherwise might have permitted political opponents to claim that the incumbents opposed voting rights.
In telling the public that the sky is falling, the left implies that the entire VRA is now a dead letter. This is not true. The Court only held that the coverage formula bore no relation to modern America. Congress is at liberty to revise the formula based on current data. Moreover, private citizens and the attorney general may still bring suits under Section 2 of the VRA. This provision prohibits voting practices and procedures that discriminate on the basis of race, color, or membership in a language minority group. It prohibits not only election-related practices and procedures that are intended to be racially discriminatory, but also those that are shown to have a racially discriminatory impact. Hence, the federal government and private citizens still have a very big club with which to challenge state laws.
In his concurring opinion, Justice Clarence Thomas asked why the majority stopped at striking the coverage formula. Since the “extensive pattern of discrimination that led the Court to previously uphold § 5 . . . no longer exists,” Thomas would have found Section 5 unconstitutional. He rightly complained that Shelby County needlessly prolongs federal supervision of state election practices.
For the left, it is forever 1965. Shelby County demonstrates that. “Bloody Sunday” in Selma, Alabama, and the murder of activists in Philadelphia, Mississippi, are present realities for them. They ignore that both of these Southern towns are now governed by black mayors and that the Chief Executive himself is black.
Of course, recognizing the positive changes in America would put many in the civil-rights establishment out of business.