On Race and Voter ID, John Roberts Wants It Both Ways

Once, the chief justice said the only way to stop discriminating on race was to stop discrimination on race. Now his tune isn't so clear.

Charles Dharapak/AP

“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.”

Those words as much as any may define the chief justice’s jurisprudential philosophy today. In that 2007 opinion, he wrote for five justices that two urban school systems could not take account of the race of students, even in a small minority of cases, in order to prevent certain magnet schools from becoming racially isolated because of neighborhood housing patterns. “Simply because the school districts may seek a worthy goal does not mean they are free to discriminate on the basis of race to achieve it,” Roberts wrote, in part of the opinion written only for four justices. The policy of encouraging greater racial mixing, he suggested, was the moral equivalent of Southern school segregation, which forbade it entirely: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons.”

The idea that government must not discriminate by race seems to be important to the chief. “It is a sordid business, this divvying us up by race,” he wrote in a voting-rights case in 2006. During oral argument in Fisher v. University of Texas, he became visibly agitated on the bench at the idea that the University of Texas (like virtually every American university and college) provides a (voluntary) blank on its application form for race or ethnicity. Last fall, when Justice Sonia Sotomayor’s dissent challenged his color-blind vision in Schuette v. BAMN, he fired back a querulous concurrence: “To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

Whether one shares it or not, the chief’s perspective does display a certain moral nobility—an old-style determination that the state will never again engage in the “sordid business” of discrimination, no matter the clever arguments advanced for doing so. Proclaiming moral absolutes can be principled. It can also degenerate into preening. The test is applying the principle when it pinches.

Which brings us to Veasey v. Perry, the voting-rights case in which the Court issued its 5 a.m. order on Saturday. That order allowed Texas’ draconian voter-ID law, known as SB 14, to take effect for the midterm elections next month—the first general election to which it will be applied. It is customary to speak of SB 14 as a “tough” voter-ID law, but it might be better to speak of it as a discriminatory voter-ID law, inspired by the intent to disfranchise black and Latino voters.

That’s not my inference; it was the considered factual finding of federal district Judge Nelva Gonzales Ramos. (Ramos is an Obama appointee, but one endorsed for the bench by Republican Senators Kay Bailey Hutchinson and John Cornyn.) Ramos based her conclusion on a nine-day trial in which both the state and the plaintiffs presented evidence about SB 14’s history and effect. That effect is startling—Ramos found that the law might disfranchise as much as 4.5 percent of the state’s eligible voters. But more important is her conclusion about the law’s intent (emphasis added):

The record as a whole (including the relative scarcity of incidences of in-person voter impersonation fraud, the fact that SB 14 addresses no other type of voter fraud, the anti-immigration and anti-Hispanic sentiment permeating the 2011 legislative session, and the legislators' knowledge that SB 14 would clearly impact minorities disproportionately and likely disenfranchise them) shows that SB 14 was racially motivated.

This is a devastating finding. The judge is not saying that the law has a disproportionate effect on minorities; she is saying that it was specifically written to prevent them from voting. Because it was intentional race discrimination, she found, it violated Section 2 of the Voting Rights Act, the Equal Protection Clause of the 14th Amendment, the prohibition of racial restrictions on the vote in the 15th Amendment—and also the prohibition of poll taxes in the 24th Amendment.

If true, a sordid business indeed.

And bear in mind that the trial judge is the only one who has examined the evidence. The Fifth Circuit has not—it stayed Ramos’s order immediately, pending briefing and argument later. The plaintiffs then asked the Supreme Court to lift that stay. That would have reinstated Ramos’s order and prevented the state from enforcing the law until the appeal could be heard.

The Supreme Court, in an order issued shortly before dawn Saturday, declined. The high court has not examined the evidence either. Justice Ruth Bader Ginsburg wrote a dissent for herself and Justices Sonia Sotomayor and Elena Kagan. Ginsburg argued that the Court was choosing to allow a law found to be intentionally discriminatory to take effect on the sole ground that an injunction might inconvenience the state. Those who voted against the stay did not explain their reasoning (or even tell us which justices they are), but they apparently acted under something called the Purcell doctrine, which holds that courts should be cautious in enjoining voting laws close to Election Day for fear of causing confusion at the polls.

Trouble-free elections are a worthy goal—certainly courts should hesitate before requiring electoral changes simply because of untested claims that a state’s voting rules violate federal law. But school diversity is also a worthy goal. The chief has told us that discrimination cannot be used to further a goal just because it is worthy. And the plaintiffs’ claims were not untested. For purposes of this case, they were facts.

Because the Court keeps its emergency procedures deliberately opaque, we have no record of Roberts’s views on this case. All we know is that three justices dissented from the order, meaning that five or six voted yes. It’s theoretically possible that the chief justice voted to stay the Texas law, and that the fifth vote on the other side was provided by Justice Stephen Breyer.

Possible, but not likely.

There is a contradiction here. A justice who truly abhors official racism should be agonized at the prospect of allowing a state to run an election if there is even a chance that it has chosen to discriminate in the right to vote. Even silent acquiescence violates the principle he has repeatedly proclaimed.