In Going After Texas Voting Policies, Holder Takes John Roberts at His Word

The Supreme Court struck down Section 5 of the Voting Rights Act, but the feds can still demand "preclearance" in states where real discrimination is still occurring.

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U.S. Attorney General Eric Holder discusses the Supreme Court's Voting Rights Act ruling at the Justice Department Wednesday, July 25, 2013. (Jonathan Ernst/Reuters)

"The way to stop discrimination on the basis of race," Chief Justice John Roberts wrote in 2007, "is to stop discriminating on the basis of race." We will now find out whether Roberts's anti-racist rhetoric is serious, or is a code phrase meaning that the era of civil rights is now over by judicial fiat.

On Thursday, Attorney General Eric Holder announced that the Justice Department would ask a federal District Court to require the state of Texas to obtain prior permission before implementing its voter ID and other new voting laws.

As is widely known, the Supreme Court in June gutted Section 5 of the Voting Rights Act--the "preclearance" requirement that obliged states and local governments with long racist histories to obtain advance permission for changes in their voting systems.  Roberts himself wrote the 5-4 opinion. Most news accounts focused on his blithe statement that (in the era of Trayvon Martin and Paula Deen) "our Nation has made great strides," and thus need not suspect Southern state governments of racism.  

But the actual legal rule announced in the opinion was narrower.  The opinion didn't say there could be no preclearance; it said only that the preclearance formula was too old. The jurisdictions covered were selected with reference to events that occurred before 1975.  The formula, Roberts said, focused "on decades-old data relevant to decades-old problems."

The VRA is far more than Section 5, and it is and always was more flexible than the majority suggested.  For one thing, "covered jurisdictions" have always had the opportunity to get out from under the preclearance requirement.  Under Section 4 of the VRA, they could go to court and demonstrate that they have "stop[ped] discriminating on the basis of race" for a period of ten years. As Justice Ginsburg pointed out in her dissent in Shelby County, 200 jurisdictions have successfully "bailed out" of preclearance--with no objection from the federal government. 

Shelby County never sought to bail out. It couldn't show that it had "stopped discriminating on the basis of race," because, well, it hadn't. Among other questionable acts during the previous decade, the county had actually defied the Act, holding a election under a new law for which it did not seek preclearance. Justice Sonia Sotomayor pointed out during oral argument that Shelby County "is the epitome of what caused the passage of this law to begin with," and the county didn't bother to deny it. Rather than expressing remorse for its racist past, it came before the Court more like a sulky teenager complaining he'd been grounded just for stealing the family car a few times: Why am I grounded when other kids aren't? Can't we just forget the whole thing? For all the sternness of its anti-racist language ("any racial discrimination in voting is too much"), the majority handed Junior back the keys without so much as a "you be good now."

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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