[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.
Opponents of 5 of the Voting Rights Act are invoking the "dignity" of covered states. That "dignity" is as imaginary as Harvey the Giant Rabbit.
Shelby County v. Holder, the Voting Rights Act case the Supreme Court will hear Wednesday, is a peculiar case. Its oddity is this: no one on either side contests that Congress has the power to enact a provision like § 5, the provision at issue here. And no one on either side questions that § 5 does what it was designed to do: keep the ballot box and the political process open to formerly excluded minority voters.
The Act, in other words, isn't broken. Nonetheless, argue the plaintiffs, this key provision must be scrapped.
To understand why, consider this sentence from the Petitioners' Brief filed on behalf of Shelby County, Alabama: "determining whether the formula is rational in practice is not a substitute for testing it in theory."
"The formula" is the heart of § 5, the so-called "preclearance" provision of the Act. As devised by Congress in 1965, the Act imposes a special requirement on states or parts of states that met two conditions during the 1964 election cycle. First, those jurisdictions employed a "test or device" for voting that had been shown to lead to racial exclusion from the vote; and, second, less than 50 percent of the eligible voters actually voted that year.
Those places--called "covered jurisdictions"--are required to obtain pre-approval from the federal government before changing their election laws or procedures. They can seek approval from the Justice Department or from a federal District Court in Washington. And if a state, or a county within a state, can show that they have stopped discriminating against minority voters for a ten-year period, they can get out from under the coverage altogether.
No one questions that the Voting Rights Act has been one of the most successful statutes in American history. It revolutionized Southern politics, permitting black Southerners to vote, influence elections, and run for office in numbers that would have seemed impossible only a few years before its passage.
So much for practice; now for the theory. The theoretical sin of § 5 is that it treats some states--those with the worst history of racial exclusion from the vote--differently than others. Justice Anthony M. Kennedy summed up the objection in 2009 during oral argument in an earlier case, Northwest Austin Municipal Utility District v. Holder: "the Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereignty of Alabama, is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments than the other."
The correct answers to this question are, respectively,"yes," and "what's your point?" The states and parts of states covered by § 5 are "trusted" less than others because Congress has repeatedly found them to be the worst offenders in the historical crime of racial vote-rigging. And neither those states--nor any other state in the Union--has any kind of "sovereign dignity" that needs the Court's protection against infringement by their own voters.
Opponents of § 5 suggest that it is a sort of historical oddity, like great-grandpa's CSA belt buckle, of no relevance to today's "post-racial" world. Shelby County argues that official racism is dead, buried, forgotten: "There is no evidence in the legislative record suggesting that the racial animus of the 1960s in covered jurisdictions has been hibernating for two generations."
But that's the second oddity. The people who actually run the political system overwhelmingly disagree. The Act has been up for renewal in 1970, 1975, 1982, and 2006. On each occasion, members of both Houses have opposed renewal; on each occasion, Congress has held extensive hearings into current conditions in covered jurisdictions--and voted to keep § 5. In 1970 and 1975, Congress adjusted the formula for a "covered jurisdiction" to make sure it captured those places where racism persisted. In 2006,when Republicans controlled both Houses of Congress, the vote to renew was 390-33 in the House and 98-0 in the Senate. George W. Bush signed the extension with a flourish, inviting Rosa Parks and members of the King family to be present.
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:
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.