The second paradox is that the very success of the act, the fact that it has been invoked so often to thwart so many discriminatory schemes and ruses, has given to its detractors a logically attractive argument: We don't need it anymore. It's done what it was principally designed to do. The problem with that argument is not only that it directly conflicts with the history of the past three years, but that it contradicts the other main argument being made by opponents of Section 5: There is so much voter discrimination in so many jurisdictions not covered by Section 5 that it is no long constitutional to enforce the preclearance provision only against covered jurisdictions.
'I Don't Want to Draw "Nigger" Districts'
The Voting Rights Act has been so successful over the decades in part because its main provisions interact so sensibly with one another. Section 2 prohibits racially discriminatory voting practices and procedures -- and gives private citizens the right to sue to enforce the law. Section 4 sets out the criteria for when a jurisdiction has to seek federal approval for new voting rights laws -- and when a "covered" jurisdiction can "bailout" of its obligations under Section 5.
Under Section 5, officials in a "covered" jurisdiction must prove to the satisfaction of federal officials that a "proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group." Nine states -- including Alabama, the home of Shelby County -- are completely "covered" by the section. Five other states have only certain counties which are covered. Two states have only certain townships which are covered. Despite systemic voter suppression efforts over the past few election cycles, neither Ohio nor Pennsylvania are "covered" jurisdictions.
Opponents of the act say it's no longer necessary because there is less racial discrimination in voting laws than there once was. This is undoubtedly true. But there is still an astonishing level of racial discrimination in voting laws. Since 1982, the feds told the justices in their Shelby County brief, "... approximately 2,400 discriminatory voting changes had been blocked by more than 750 Section 5 objections, approximately 400 of which involved cases with specific evidence of intentional discrimination." Without Section 5, the feds argue, minority voters would have had to sue individually, at great cost of time and money, in some cases after having lost their right to vote. Like it was before the passage of the statute.
When he reviewed the record in this case, in writing the ruling that is now before the Supreme Court, D.C. Circuit Court of Appeals Judge David S. Tatel described some of the facts that confronted members of Congress in 2006 when they were debating Section 5's renewal. "The legislative record also contains examples of overt hostility to black voting power by those who control the electoral process," Judge Tatel wrote:
On Mississippi, for instance, state legislators opposed an early 1990s redistricting plan that would have increased the number of black majority districts, referring to the plan publicly as the "black plan" and privately as the "nigger plan." (Modern Enforcement of the Voting Rights Act: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 22 (2006) ("Modern Enforcement") (internal quotation marks omitted); see also S.Rep. No. 109-295, at 14.
In Georgia, the state House Reapportionment Committee Chairman "told his colleagues on numerous occasions, 'I don't want to draw nigger districts,'" H.R.Rep. No. 109-478, at 67 (quoting Busbee v. Smith, 549 F.Supp. 494, 501 (D.D.C.1982)). The district court pointed to numerous additional examples of intentional discrimination in the legislative record. See Shelby Cnty., 811 F.Supp.2d at 472-76, 477-79, 480-81, 481-85, 485-87; see also Nw. Austin, 573 F.Supp.2d at 258-62, 289-301
Judge Tatel is an appointee of President Bill Clinton, but Section 5 of the Act has been consistently upheld by lower court appointees of Republican presidents. For example, at the trial level in the Shelby County case, U.S. District Judge John Bates, an appointee of President George W. Bush, rejected the county's arguments against Section 5. So did D.C. Circuit Judge Thomas B. Griffith, another appointee of President Bush, when he joined Judge Tatel's ruling. It is therefore mostly the language of Chief Justice Roberts's majority opinion in Northwest Austin, and Justice Thomas' concurrence, which explains why many voting rights experts believe today that Section 5 is in trouble in Shelby County.