In his New York Times op-ed, “The Chief Justice’s Long Game,” Richard L. Hasen, a noted authority on voting rights, takes deep umbrage at yesterday's Supreme Court decision in Shelby County v. Holder, which he regards as an illicit part of a long-term agenda to dismantle some of the major safeguards of the Civil Rights era. He is wrong, I believe, in dealing both with the merits of the issue and the larger social context of which it is a part.
The Roberts opinion struck down Section 4 of the 2006 Amendments to the Voting Rights Act, but left Section 5 untouched. Section 5 allows the use of an exhaustive preclearance system in which affected states have to submit any and all changes in voting requirements, broadly construed, to the federal government for approval. The overturned Section 4 sets out the states that are subject to this onerous regime. In 1965, Section 4 included nine states, mostly Southern. With the 2006 amendments, those 40-year old classifications were fixed in place for another 25 years.
Hasen argues that the Court “fantasizes that voting discrimination in the South is a thing of the past.” I am old enough to remember the state of race relations in the United States in 1965. The transformation in race relations since that time is palpable and it has been decisively and unquestionably for the better. It is irresponsible to suggest that nothing much has changed in the South on this issue. Hasen’s off-handed slap trivializes the enormity of Jim Crow by suggesting any resemblance whatsoever between the situation then and the situation now.
The world has turned upside down over the past 50 years and the question of whether the 1965 version of the VRA is “appropriate” for Congress to enact under the powers it has under the Fifteenth Amendment admits of only one answer: It is not. The Chief Justice puts forward an impressive array of voting statistics that show that the institutions that once disgraced this nation have largely been cured. The reader can draw his or her own conclusions from this summary table that the Chief Justice presented in his opinion:
The constitutional and political success story found in this table—which is based on 2004 data fully available to Congress when it passed the 2006 VRA Amendments—poses a huge difficulty for the uncritical advocates of civil rights. They are now facing a March of Dimes problem -- their success has undermined the very reason for their existence. They cannot live with their triumphs because they deprive them of the club they can use to impose other parts of their agenda.
Section 2 0f the Voting Rights Act -- which still stands after the Supreme Court's decision -- allows challenges to individual acts of voting discrimination, but it is doubtful that the defenders of the law could prove any form of discrimination under those more exacting standards. What preclearance gave them was the ability to sidestep that more difficult process by blocking various state reforms without ever having to prove their case in Court.
Hasen notes that places like Texas are now in a position to impose their own voter ID laws, which they could not do if preclearance was still in place. He further notes that it has been rough going to strike down such statutes on the merits. But he draws exactly the wrong inference. If voting laws can work in the 41 states that weren't subject to preclearance, then they should be able to work in all 50 states. We no longer need a two-tier regime for states. The aggressive and often misguided enforcement policies of Attorney General Holder should not be elevated to the law of the land.
Hasen further attacks the Chief Justice for his lack of candor by striking down Section 4’s 1965 list of states without striking down the entire preclearance mechanism of Section 5 (which was the preference of Justice Clarence Thomas, per his concurrence). But the real cynics are the defenders of the 2006 Amendments to the VRA. There is only one reason why the 1965 baseline remained: no one could possibly agree on a new list, for the simple reason that no state deserves the opprobrium that inclusion on it would carry. In order to avoid any unwarranted slur, inertia carried the day, strictly and solely as a matter of political expedience. Any effort to construct a new list of preclearance state or counties would have raised hopeless questions of inclusion and exclusion, and would have shown that there is not a single state or county in the nation where voting practices are remotely comparable to the despicable standards of 1965. Congress did not budge from its position because it knew that it could not make the change. The Chief Justice is hardly to be faulted for giving them the opportunity to do the impossible.
The supporters of the VRA are the ones to be faulted for their aggressive use of the preclearance power. As the Chief Justice said, the duration of the most recent iteration of the VRA is 25 years, compared to 5 years for the original 1965 version. Moreover, the sanctions are stronger now than they were then. The 2006 Amendments to the VRA stand for the proposition that the lesser the wrong, the greater the sanction, which fits no one’s definition of appropriateness. Nor is that case made by Justice Ruth Bader Ginsburg’s misguided defense of the VRA on the ground that it is needed to “facilitate completion of the impressive gains thus far made.”
There is no need to bring in the heavy artillery to deal with whatever small problems remain. Nor is it possible to defend the VRA on the ground that it protects against “backsliding” when everyone knows that the current climate of opinion and distribution of power makes it totally impossible to return to Jim Crow politics. Does Justice Ginsburg really believe that the ability to mount individualized challenges under Section 2, in the unlikely event that they are needed, could not deal with some overt scheme to exclude African-American voters from the polls? Therein lies the real fantasy, which is to presume that other institutions are corrupt at some dark and hidden core, while all the evidence points strongly in the opposite direction. As I argued on my recent Hoover podcast, the decision in Shelby County marks the end of an era. This country faces many problems going forward. Chasing after the ghost of Jim Crow is not one of them.