One of the great ironies of the Shelby County case is its timing. When county officials filed their declaratory action in April 2010 they had every reason to think that Section 5 was dead in the water. The justices indeed had just issued a year earlier, in Northwest Austin, an invitation to attend the wake. At that point, the remedies and the protections of the Voting Rights Act were something Americans took for granted -- every registered citizen could vote, right? For millions of people concerned about civil rights, the battleground in 2010 was over same-sex marriage or even health care.
But a funny thing happened to this challenge on its way to the Shelby County case. The entire landscape of voting rights changed in a relative blink. And the change restored and renewed the Act by reminding hundreds of millions of Americans, a whole new generation of voters, of the purpose and effect of the old law. So far no one has come up with an accurate count (or even a reliable ballpark figure) of how many Americans got to vote last election because the Voting Rights Act protected them from state or local election laws that would have disenfranchised them. But considering the number of successful challenges, not to mention the deterrent effect noted below, the number cannot be low.
This, too, should not have come as a surprise to the law's most ardent foes, for they are to blame for reminding the American people that their right to vote was not nearly as sacred as they thought it was. Over the past three years, since Shelby County accepted the Supreme Court's latent invitation and began its march to Washington, conservative officials all over the country have acted as though the Voting Rights Act actually had been struck down by the Supreme Court in Northwest Austin. For example, of the nine states covered in their entirety by Section 5, lawmakers in six of them passed restrictive new voting laws since 2010. That's also a stubborn fact likely to come up in court next week.
Things may "have changed in the South" over the past few decades. But 2012 showed they haven't changed nearly as much as the Chief Justice would like to think.
Then there is this. Last summer, as the more odious of these laws began to wend their way through the federal courts, one respected judge after another, appointees of both Republican and Democratic presidents, heralded Section 5 of the Voting Rights Act as a necessary tool to prevent voter discrimination. For example, last August, in a unanimous ruling in federal court in Washington, Section 5 of the act was successfully invoked to stop enforcement of a draconian Texas' voter identification law, a measure that would have forced poor and elderly citizens, without their own means of transportation, to travel great distances during working hours to obtain a state ID from offices the hours of which had specifically been limited by the state legislature.
The Voting Rights Act was invoked successfully to stop Florida officials from reducing early voting hours in a way that disproportionately impacted minority voters. And the federal law helped ease the burden on voters in South Carolina, too. Although a three-judge federal panel in Washington ultimately agreed to permit South Carolina officials to begin to implement their restrictive new law after the 2012 election, and after they remedied its many deficiencies. U.S. District Judge John D. Bates, an appointee of President George W. Bush and the author of the initial ruling in Shelby County, made sure to remind the justices that his views on the subject of the act had not changed:
One cannot doubt the vital function that Section 5 of the Voting Rights Act has played here. Without the review process under the Voting Rights Act, South Carolina's voter photo ID law certainly would have been more restrictive. Several legislators commented that they were seeking to structure a law that could be precleared.
So if the Supreme Court strikes down Section 5, it won't just disappoint one of the most conservative federal trial judges in the country. It won't just minimize the significance of the law's impact upon the 2012 election. It will also encourage lawmakers in states like South Carolina to "structure" their voting laws without the burden of worrying about an initial round of review by federal election officials. Logic -- and history -- suggest this will disenfranchise minority voters. Moreover, without Section 5, the evidentiary burden of challenging this new generation of voting laws will fall not upon the local officials seeking to implement the new measures but upon those effectively disenfranchised by them. Like the way it was before the Act was enacted in August 1965.
Last year, writing about voting rights, I came across many stories of registered voters whose lives were upturned by these voter suppression efforts. In South Carolina, for example, I came across a Vietnam veteran named Craig DeBose. A longtime resident of the state, he did not own a car, and thus did not have a state-issued photo identification. So he traveled 11 hours from home by train to come to Washington, D.C. to testify at his Section 5 trial. "And why did you come all this way to tell the Court your story?" he was asked at the witness stand. "So I can vote," DeBose replied. A Supreme Court ruling striking down the Voting Rights Act will strike down the rights of men like Craig DeBose, because it will deny him the ability to use Section 5 to block unconstitutional restrictions on his ability to vote.
It is true that partisan officials in other states, "uncovered" jurisdictions, also have recently enacted and sought to implement restrictive new voting regimes. The most egregious examples of these measures occurred in Ohio and Pennsylvania, where Republican officials gave voice to some of the more pernicious notes of racism evident anywhere during the 2012 campaign. Shelby County argues that these examples of racial discrimination in voting, in "uncovered jurisdictions," means that the Voting Rights Act is constitutionally under-inclusive. If the Supreme Court considers this argument decisive, it would jeopardize all sorts of legislative action, since so little of it can ever be entirely inclusive.
Shelby County is correct to point out that recent voter suppression efforts, with their racially discriminatory intent or effects, are not limited to a single state or region of the country. But the argument that Section 5 is dated is still far more difficult to make today, after the 2012 election cycle. Things may "have changed in the South" over the past few decades, as Chief Justice Roberts wrote in Northwest Austin. But the lesson of 2012, visible to the naked eye in federal courtrooms and at local polling stations, is that things haven't changed nearly as much, down South or anywhere else in this racially polarized nation, as the Chief Justice would like to think.
The Supreme Court
What do we really know on the eve of the argument in Shelby County v. Holder? We know that racial polarization has intensified during the Obama Administration. Citing the work of four professors at four separate universities, Thomas Edsall recently noted the presence of a "statistically significant increase from 2008 to 2012 in 'explicit anti-black attitudes'" around the country, especially among Republicans. Many of those Republicans are the ones who sponsored and enacted some of the voter suppression laws of the 2012 cycle.
And we know that this is the most conservative Supreme Court since the 1930s. We know the Court invited many of the state voter suppression efforts of the past three years when it issued its ruling on Indiana's voter identification law in Crawford. We know, too, that the Court encouraged in its Northwest Austin ruling, and in other rulings over the past decade, a level of constitutional disdain for the Voting Rights Act that had not existed since 1965. Having created the factual and legal conditions to undermine the federal law, the Court now is poised to say that it is weakened beyond repair.
In a recent issue of The Nation, Ari Berman, who has doggedly covered the voter suppression beat over the past few years, concludes that "the current campaign against the [Voting Rights Act] is the result of three key factors: a whiter, more Southern, more conservative GOP that has responded to demographic change by trying to suppress an increasingly diverse electorate; a twenty-five-year effort to gut the VRA by conservative intellectuals, who in recent years have received millions of dollars from top right-wing funders, including Charles Koch; and a reactionary Supreme Court that does not support remedies to racial discrimination."
If the Court strikes down Section 5 of the Voting Rights Act, this year especially, given the record of the past three years, the justices who do so will reveal a disconcerting level of disconnect from the realities of modern American politics as they were expressed in the near-unanimous renewal of the Act in 2006. And the partisan ruling they would issue in this circumstance would be even more brazenly ideological and untethered from precedent than the Citizens United ruling issued in January 2010. To say that "things have changed in the South," or anywhere else in America for that matter, is the truth about voting rights. But it is not the whole truth. And it is certainly not nothing but the truth. A Supreme Court ruling that strikes down one of the most popular and successful laws in the nation's history should not be based upon such duplicity.
But it very well may be. It seems clear that the case will turn now on whether any of the Court's conservatives have changed their minds about Section 5 since Northwest Austin was decided; whether those justices saw in the great voting rights battles of 2012 a renewed purpose to and justification for Section 5. The Chief Justice gave himself a political out, in Northwest Austin, when he wrote that "it may be that" that the improvements wrought so far by the Voting Rights Act "are insufficient and that conditions continue to warrant preclearance." Fair enough. But this is also the man who even 30 years ago -- a period in which all parties now agree was filled with intentional racial discrimination in voting -- was fighting within the Administration to reject the 1982 renewal of the statute; fighting for it even after the Reagan White House had decided to embrace the Act's renewal.
Ask yourself, then, in light of the transcript of the Northwest Austin argument, which conservative justice -- which fifth vote -- is going to undertake the sort of soul-searching it would likely take to save the act? When confronted with some of the very evidence civil rights lawyers offer up in Shelby County, Justice Kennedy conceded that it made a "good demonstration of discrete discriminatory acts." But "my concern," he still told the lawyers, "is that it's just not clear to me that Congress addressed this for the rest of the country." Justice Alito echoed this concern. And the Chief Justice himself said, of Section 5's renewals: "Well, they said five years originally and then another 20 years. I mean, at some point it begins to look like the idea is that this is going to go on forever."
And then ask yourself whether you would be less surprised to read, instead, the language of a 5-4 majority opinion in Shelby County that states that Congress must cover all American jurisdictions under Section 5 if it is going to cover any jurisdictions under Section 5. Such a ruling would place upon this do-nothing Congress an impossible task -- and the justices who would endorse it know that. As Rep. Henry Hyde, the legendary Illinois Republican, said during the legislative fight leading up to the 1982 renewal of the act: nationalizing the Section 5 standard would "strengthen the law to death" by making it national in scope and thus over-stretching the federal resources necessary to enforce it.
The argument next week will turn on questions of how much weight and respect are due to Congress's 2006 findings that preceded the last renewal. But the act's success cannot simply be measured merely by counting the number of black officials who have been elected since 1965 or the number of minority voters who have been registered since then. It cannot be measured merely by how it treats some jurisdictions different from others. It must also be measured by the ways in which minority voters still rely upon Section 5 to preserve and protect their rights to vote. Since 1982, the record tells us, 2,400 discriminatory voting changes were blocked by 750 Section 5 challenges.
Although they no longer find a voice in Congress, although they have been squeezed out of the mainstream of political thought, the conservative forces arrayed against minority voters have not rested since 1965. They have not given up and embraced the principles of broad voting rights. They have instead pushed forward, often with cynical intent, seeking at every turn to restrict the scope of the act. A Supreme Court ruling striking down Section 5 would unilaterally disarm federal officials, disabling their ability to effectively fight for minority voting rights at the precise historical moment when those rights are being jeopardized again by new a new generation of suppression efforts. Rewarding vote suppressors, it would strip away from millions of citizens the greatest legal defense they have ever had to protect their right to vote.
Thanks to hundreds of those overzealous state lawmakers, who jumped the gun after Northwest Austin and Crawford, who enacted odious laws that jeopardized the ability of millions of registered voters to cast a ballot, we've already been treated to a glimpse of the future without the core of the Voting Rights Act. It is very grim, indeed. No wonder Rep. John Lewis, the civil rights icon and longtime Democratic member of Congress from Georgia, said last summer that "all of us should be up on our feet" making a ruckus about partisan voting restrictions. The good news is that federal lawmakers have heard those cries and done something about it. The bad news is that the Supreme Court has heard those same cries, and seems poised to do something about it as well.