On Voting Rights, a Decision as Lamentable as Plessy or Dred Scott

Splitting 5-4 along ideological lines, today the Supreme Court ruled a key provision of the Voting Rights Act unconstitutional.
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Representative John Lewis and the Reverend Al Sharpton at a rally for voting rights in front of the Supreme Court on February 27 (Gary Cameron/Reuters)

Let's be clear about what has just happened. Five unelected, life-tenured men this morning declared that overt racial discrimination in the nation's voting practices is over and no longer needs all of the special federal protections it once did. They did so, without a trace of irony, by striking down as unconstitutionally outdated a key provision of a federal law that this past election cycle alone protected the franchise for tens of millions of minority citizens. And they did so on behalf of an unrepentant county in the Deep South whose officials complained about the curse of federal oversight even as they continued to this very day to enact and implement racially discriminatory voting laws.

In deciding Shelby County v. Holder, in striking down Section 4 of the Voting Rights Act, the five conservative justices of the United States Supreme Court, led by Chief Justice John Roberts, didn't just rescue one recalcitrant Alabama jurisdiction from the clutches of racial justice and universal enfranchisement. By voiding the legislative formula that determines which jurisdictions must get federal "preclearance" for changes to voting laws, today's ruling enables officials in virtually every Southern county, and in many other jurisdictions as well, to more conveniently impose restrictive new voting rules on minority citizens. And they will. That was the whole point of the lawsuit. Here is the link to the ruling.

In a 5-4 ruling over liberal dissent, the Supreme Court today declared "accomplished" a "mission" that has become more, not less, dire in the four years since the justices last revisited the subject. They have done so by focusing on voter turnout, which surely has changed for the better in the past fifty years, and by ignoring the other ruses now widely employed to suppress minority votes. In so doing, the five federal judges responsible for this result, all appointed by Republican presidents, have made it materially easier for Republican lawmakers to hassle and harry and disenfranchise likely Democratic voters. And they have done so by claiming that the Congress didn't mean what it said when it renewed the act by landslide votes in 2006.

No statute is ever perfect. Perhaps Congress should indeed have updated the "coverage formula" of Section 4 when it last revisited the law. But there are plenty of imperfect laws kept afloat by courts, including this Court. What happened here is that the Court's conservatives were no longer willing to countenance the intrusion upon "state sovereignty" that Section 4 represented in the absence of what they considered to be "updated" justifications for federal oversight. To the majority, the fact that "minority candidates hold office at unprecedented levels," was more important than the fact that Section 4 was invoked more than 700 times between 1982 and 2006 to block racially discrimination voting measures.

The Decision

The opinion itself is as accessible as any you are likely to read. Writing for the Court, the Chief Justice declared that Congress simply failed to update the "coverage formula" of Section 4 to address the very successes that the Voting Rights Act has brought to minority voting rights over the past 50 years. If Congress is to divide the states between "covered" and uncovered jurisdictions, the Chief Justice wrote, it bears a heavy burden under the Tenth Amendment and "must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It simply cannot rely on the past."

The Fifteenth Amendment, which decrees "that the right to vote shall not be denied or abridged on account of race or color," the Chief Justice wrote in a remarkable passage, "is not designed to punish for the past; its purpose is to ensure a better future." Yet the Court's ruling today directly contradicts that lofty premise. A black voter in Shelby County today, as a result of this ruling, has a much grimmer "future" when it comes to voting rights than she did yesterday. Without Section 4's formula, Section 5 is neutered, and without Section 5 that black voter in Shelby County will have to litigate for her rights herself after the discriminatory law has come into effect.

In a passionate dissent, Justice Ruth Bader Ginsburg immediately homed in on the extraordinarily aggressive nature of what the Court has just done. "The question this case presents," she wrote, "is who decides whether, as currently operative, Section 5 remains justifiable, this Court, or a Congress charged with the obligation to enforce the post-Civil War amendments 'by appropriate legislation.'" Until today, Justice Ginsburg wrote, the Court "had accorded Congress the full measure of respect its judgments should garner" in implementing that anti-discriminatory intent of the Fourteenth and Fifteenth Amendments. Until today.

"The Court," Justice Ginsburg wrote, "makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story." And then she proceeded to outline the countless ways in which racial discrimination in voting practices is alive and well in Alabama and other jurisdictions covered by the law. "The sad irony of today's decision," she wrote, "lies in its utter failure to grasp why the VRA has proven effective." It has been effective, of course, because it has made it harder for vote suppressors to suppress the votes of minority citizens. No more and no less.

The Winners 

We should also be clear today about who the winners and the losers are in the wake of this opinion. The primary winners are vote suppressors in those many jurisdictions covered by Section 5, the politicians, lobbyists and activists who have in the past few years endorsed and enacted restrictive new voting laws in dozens of states. The legal burden now will be shifted from these partisans to the people whose votes they seek to suppress. This will mean that discriminatory practices will occur with greater frequency than they have before. The Constitution, the Court declared, must be color-blind and may not discriminate between states even if it means being blind to the political realities of a nation still riven by racial divides.

Even in those jurisdictions not covered by Section 5 of the Voting Rights Act, lawmakers will cite today's ruling to justify future restrictions on voting -- and in that sense this is a national disaster and not just a regional one. Proponents of racial redistricting, or voter identification laws that are really a poll tax, will find succor in today's ruling. And that means we will see more of these measures and, as we do, the people most directly impacted by them will have fewer ways in which to fend them off. The deterrent effect of Section 4, alone, was enormous. As U.S. District Judge John Bates remarked last year in a case out of South Carolina, its mere presence has stopped lawmakers from pitching hundreds more dubious laws.

So the winners today are officials like Rep. Darryl Metcalfe, the Republican state senator from Pennsylvania, who defended his state's statutory effort to suppress votes in the 2012 election by dog-whistling that those registered voters too "lazy" to get new identification cards didn't merit a ballot. Rep. Alan Clemmons, a Republican state representative from South Carolina, also wins today. He's a politician from a Section 5 state that sought to restrict voting rights. He answered "Amen" to a constituent who had written that encouraging black voters to get voter identification cards would "be like a swarm of bees going after a watermelon." Also winning big as a result of Shelby County? The grandees of the current iteration of the "voter fraud" myth.

The Losers

Who loses today? Not just the tens of millions of minority voters whose ability to cast a ballot now may be more easily restricted by new voting laws. Not just the millions who now will be more vulnerable to redistricting plans that are patently discriminatory. But the poor, the elderly, and the ill of all races, men and women who have voted lawfully for years but who will not be able to find the money to pay for new identification cards, or take the time out of work to travel to state offices to get one, or have the health to make the journey to obtain identification they otherwise do not need. These people, everywhere, were the indirect beneficiaries of Section 5 of the Voting Rights Act. And today their right to vote is far less secure.*

So the losers today are registered voters like Craig Debose, a Vietnam veteran and longtime resident of South Carolina. Last year, he traveled 11 hours by train to Washington to testify in a Section 5 lawsuit. He doesn't have a car, which is why he didn't have photo identification, which is why he was going to be disenfranchised by state lawmakers until the Voting Rights Act saved him (for at least the last election cycle, the South Carolina law is still on the books). Losing today, too, is Jacqueline Kane, an elderly woman in Pennsylvania who had voted lawfully without incident for decades but who would have been forced from her nursing home to get an identification card. All to prevent "voter fraud" no one can prove.

Losing today also are citizens of all races in Texas who work for a living but cannot afford to travel hundreds of miles to state licensing offices. They were spared last year by Section 5 when a federal court declared, among other things, that officials intentionally limited the hours of operation for offices available to issue new identification cards so as to preclude the working poor from getting there. "A law that forces poorer citizens to choose between their wages and their franchise unquestionable denies or abridges their right to vote," declared a federal court last year. Today's ruling in Washington stands for precisely the opposite proposition.

Postscript

The Court's majority is wrong. Terribly wrong. The Voting Rights Act isn't outdated. Its vitality was amply demonstrated in the years before the 2006 renewal, and in the years since. What has become outdated is the patience of a certain political and legal constituency in this country that has decided for itself over the past few years that there now has been enough progress toward minority voting to justify the law's demise. To this constituency, it is enough that more blacks and Hispanics now vote or are elected to office. To them, Section 4's actual burdens on officials -- petty little bureaucratic burdens when compared to the burden of losing one's right to vote -- suddenly are burdens so unreasonable they cannot be constitutionally borne.

Today's decision is the legal sanctification of an ugly movement that has brought America a new generation of voter suppression laws. It is the culmination of an ideological dream of a young Reagan Administration official named John Roberts, who sought 30 years ago to block an earlier renewal of the law. It is the latest manifestation of America's unfortunate eagerness to declare itself the grand victor even when a fight is clearly not won. Indeed, as today's  setback demonstrates, the nation's fight for voting rights will never be over because the effort to undermine these rights is ceaseless. Section 4 of the Voting Rights Act was so strong that it took 48 years and this dubious ruling to bring it down. But down it has come.

For these reasons and many more, the Supreme Court's decision in Shelby County is one of the worst in the history of the institution. As a matter of fact, and of law, it is indefensible. It will be viewed by future scholars on a par with the Court's odious Dred Scott and Plessy decisions and other utterly lamentable expressions of judicial indifference to the ugly realities of racial life in America. And to those tens of millions of Americans whose voting rights were protected last year by Section 4, it is a direct slap in the face rendered by judges who today used the banner of "states rights" to undermine the most basic right any individual can have in a free society -- the right to be able to vote free from racial discrimination employed by public officials.  

The America described by the Chief Justice, the one in which "blatantly discriminatory evasions of federal decrees are rare," is an America which has never once existed and which obviously does not exist today. The America the rest of us see so clearly with our own eyes, the America in which officials all over are actively seeking to suppress black and Hispanic votes, is the one that tens of millions of the rest of us have to live with, at least for now, without the protections of Section 4 of the venerable law. When rights are weakened for some, they are weakened for all. We all are much weaker today in the wake of this ruling.


*Update: For example, to get a sense of how swift will be the descent into unequal justice, just hours after the Court struck down Section 4, Texas declared that it would immediately move to implement its restrictive voter identification law, the one that a federal panel of judges declared last year to be discriminatory and violative of Section 5 of the Voting Rights Act. Meanwhile, in North Carolina, a voter identification law that had been stalled out of concerns that it is racially discriminatory will also now move forward. These laws will ultimately be challenged in court--at great expense to minority citizens, who now have the burden of demonstrating that that they violate the Constitution.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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