Opposition to "preclearance" is mostly limited to officials in the covered jurisdictions. They find it irksome to have to ask permission to change their voting procedures. There is unquestionably a burden on government in preparing requests for preclearance; but the number of requests that are rejected has fallen sharply in recent years. Any state or part of a state that believes it will not be fairly treated by Justice can go straight to court. And a jurisdiction can always "bail out" by showing that it has stopped discriminating for a decade or more.
Two opposing principles are dueling in Shelby County. On the one hand, there is the right to vote. This right is the cornerstone of a democratic system. I grew up in the segregated South; I learned first-hand that constitutions, courts, and legislatures are a sham if they need not account to the people they govern. The right to vote is mentioned no fewer than five times in the Constitution and is repeatedly placed by the text under the protection of Congress. In particular, the Fifteenth Amendment forbids racial discrimination in voting, and empowers Congress to enforce that ban. It was a century coming, but the Voting Rights Act is Congress's belated response to that constitutional command.
The opposing principle is what Justice Kennedy might call the "sovereign dignity" of the states; what others call "state's rights." This principle, and these words, are mentioned nowhere in the Constitution. They refer to what might be called the theology of American law. The idea is that a state exists in some way apart from its people, and that this mini-leviathan has a "dignity" that must be protected against those very people.
At the Philadelphia Convention in 1787, Alexander Hamilton pleaded with his fellow delegates not to sacrifice the interests of Americans to the imagined interests of their state governments: "as States are a collection of individual men which ought we to respect most, the rights of the people composing them, or of the artificial beings resulting from the composition[?]" he asked. "Nothing could be more preposterous or absurd than to sacrifice the former to the latter."
Today, as in 1787, the idea that we must cripple a crucial national norm to avoid offending the "dignity" of Alabama is "preposterous and absurd." It is akin to demanding that someone apologize for sitting down on top of Harvey the Giant Rabbit.
Twenty years ago, in an essay entitled Federalism: Some Notes on a National Neurosis, scholars Edward Rubin and Malcolm Feeley penned the best description I have seen of the American obsession with the imaginary beings called the states:
[F]ederalism is America's neurosis. We have a federal system because we began with a federal system; the new nation consisted of a group of self-governing units that had to relinquish some of their existing powers to a central government. We began with a federal system because of some now uninteresting details of eighteenth century British colonial administration. We carry this system with us, like any neurosis, because it is part of our collective psychology, and we proclaim its virtues out of the universal desire for self-justification. But our political culture is essentially healthy, and we do not let our neuroses control us.
In 1965, 1970, 1975, 1982, and 2006, that healthy political culture rejected the claims of abstract dignity in favor of the concrete needs of popular self-government. The current Court, however, stands far to the right of the rest of our political system, and the proponents of Harvey now pray the Court to protect their imaginary friend. They admit the Act works, that the Constitution permits it, and that it has broad support. But they hope the Court will follow an unspoken maxim of the American far right.
If it ain't broke, break it.