On February 27, the Supreme Court heard oral arguments in Shelby County v. Holder. At issue in Shelby County is whether Congress acted lawfully when it reauthorized Section 5 of the Voting Rights Act (VRA) in 2006. The critical objective of the VRA was to end the Jim Crow barriers to voting faced by African Americans in (mostly) Southern jurisdictions. Section 5 of the VRA requires “covered jurisdictions” to obtain “pre-clearance” from the Department of Justice (DoJ) before making changes to its voting practices or procedures. The provision was included as a prophylactic measure; that is, its purpose was to prevent new and clever ways for Southern jurisdictions to disenfranchise minority groups from participating in the voting process.
In oral arguments at the Supreme Court, the VRA’s supporters argued that Section 5 is a lawful exercise of Congress’s powers under the Reconstruction Amendments; the VRA’s opponents claimed that targeting some states and not others goes beyond Congress’s power to remedy discrimination. But aside from the constitutional questions at issue, Shelby County presents the Court with much bigger questions about American race relations and the state of equality and opportunity in the United States. At the heart of Shelby County is whether racism and institutional inequality is an ongoing project, or whether it is a relic of history.
Congress clearly endorsed the view that combating racism is an ongoing project when it decided to reauthorize Section 5 of the VRA for another 25 years in 2006. The Senate vote was 98-0; the House vote was 390 to 33. “Yes, we’ve made some progress, we’ve come a distance,” said Rep. John Lewis (D-GA), a civil rights icon who suffered a concussion and almost died in the 1965 march from Selma to Montgomery, Ala. But “[t]he sad truth is,” he continued, “discrimination still exists.” Similarly, then-House Judiciary Committee Chairman James Sensenbrenner (R-WIS) argued that there is still work to be done. “Racial discrimination continues to exist and threatens to undermine the progress that has been made over the last 40 years,” he said.
In making this determination, Congress compiled a 15,000-page evidentiary record (the “VRI Study”) demonstrating the continued need for Section 5 pre-clearance. In Shelby County, the Court of Appeals pointed to “two key findings” in the VRI Study “suggesting that racial discrimination in voting remains ‘concentrated in the jurisdictions singled out for preclearance.’” First, the volume of successful Section 2 litigation in covered jurisdictions far outpaces that of non-covered jurisdictions. As the court noted, “although covered jurisdictions account for less than 25 percent of the country’s population, they account for 56 percent of successful section 2 litigation since 1982.” Adjusted to reflect population differences, “’the rate of successful section 2 cases in covered jurisdictions (0.94 per million residents) is nearly four times the rate in non-covered jurisdictions (0.25 per million residents).” Second, there is a significant disparity in litigation success rates. Simply put, there are “’higher success rates in covered jurisdictions than in non-covered jurisdictions’ – 42.5% versus 32.2%.” These disparities are even more pronounced in challenges to local voting requirements and procedures – 55.3% in covered counties versus only 36.4% in non-covered counties.
Beyond looking at litigation outcomes, however, the VRI Study indicated that courts in covered jurisdictions are much more likely to document certain conditions linked to voting discrimination than courts in non-covered jurisdictions. As noted by Ellen Katz, Professor of Law at the University of Michigan Law School, for example:
- “Courts in covered jurisdictions have both found and been more likely to find at levels that are statistically significant: acts of official discrimination that compromise voting rights, the use of devices that ‘enhance’ opportunities for discrimination against minority voters, and a lack of success by minority candidates.”
- “Courts in covered jurisdictions have also found and been more likely to find a lower level of minority voter registration and turnout, contemporary voting opportunities shaped by the continuing effects of discrimination in various socio-economic realms, racial appeals in campaigns, and tenuous justifications underlying challenged practices, although these differences between covered and noncovered jurisdictions are not statistically significant.”
- “In roughly equal numbers and proportions, courts in covered jurisdictions and noncovered jurisdictions have found racially exclusive slating processes and nonresponsive elected officials. Courts in both types of jurisdictions also found legally significant racial bloc voting in a roughly equal number of lawsuits, but courts in covered jurisdictions documented voting patterns that were more polarized by race at a rate that is statistically significant.”
At the close of argument last Wednesday, Shelby County’s Bert Rein said that “it is up to [this] Court to determine whether the problem [addressed by Section 5] indeed has been solved.” But if there truly are no longer any meaningful differences in minority voting opportunities between covered and non-covered jurisdictions, as Shelby County insists, why does the evidence demonstrate otherwise? If the Court were to eliminate Section 5 preclearance, the only fair prediction is that the disparities between covered and non-covered jurisdictions would become even more pronounced.
Although the Court has reaffirmed the constitutionality of Section 5 four times in the legislations history – most recently in 1999 – it hinted very strongly in Northwest Austin in 2009 that Congress should change the law or risk it being declared unconstitutional. Based on the arguments at the Supreme Court on Wednesday, it appears that a majority of the conservative justices are poised to do just that.
In a move that surprised many, Chief Justice John Roberts sided with the Court’s liberal Justices to uphold the individual mandate of the Patient Protection and Affordable Care Act. It is foolish to expect Roberts to do the same this time around. Roberts has been an outspoken critic of the VRA since his days in the Reagan White House. Indeed, The New York Review of Books published a scolding article making the case that during his time in the Reagan administration, Roberts “joined in its efforts to dismantle the civil rights gains of the 1960s and 1970s.” The article began, “The most intriguing question about John Roberts is what led him as a young person whose success in life was virtually assured by family wealth and academic achievement to enlist in a political campaign designed to deny opportunities for success to those who lack his advantages.”
Make of that what you will. But it is absolutely clear that Roberts does not believe that combating racism is an ongoing project. Rather, Roberts believes in a colorblind Constitution. In 2007, Roberts declared that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” A year earlier, Roberts wrote that “It is a sordid business, this divvying us up by race.”
The underlying assumption of Roberts’ colorblind ideal is that as long as people do not “see” categories such as race, they cannot discriminate on the basis of them. But this assumption is undermined by the fact that people have been and remain race-conscious, as well as the facts of existing racial inequalities. People are not colorblind. Or, as eloquently stated by Chris Hayes, “The lived experience of human beings embedded in a real, existing society, where cutesey Koan-like proclimations fail to reckon with the awesome breadth and depth of the fact of slavery, Jim Crow and their twin legacies.”
Conservatives often deride the role that “unelected judges” play in our Republic and strongly object to “judicial activism” by the courts. But if four other Justices agree with Justice Scalia that “[t]his is not the kind of question you can leave to Congress,” Shelby County’s departure from precedent, and activism, would be extraordinary.
As the Court of Appeals noted in Shelby County, racial discrimination in voting is “one of the gravest evils that Congress can seek to address.” And as Justice Scalia himself noted in 2003, “Giving [Congress’s enforcement powers] more expansive scope with regard to measures directed against racial discrimination by the States accords to practices that are distinctly violative of the principle purpose of the [Reconstruction Amendments] a priority of attention that [the Supreme] Court envisoned from the beginning, and that has repeatedly been reflected in [the Court’s] opinions.”
Related: Further Reading on Voting and the Voting Rights Act
- Exercising Our Precious Right to Vote: Could You Vote in Alabama in 1965?
- President Lyndon B. Johnson’s Remarks in the Capitol Rotunda at the Signing of the Voting Rights Act. “There is no Negro problem. There is no southern problem. There is no northern problem. There is only an American problem.”
- Senate Report on Voting Rights Act Reauthorization and Amendments Act of 2006.
- House of Representatives Report on Voting Rights Act Reauthorization and Amendments Act of 2006.
- L. Paige Whitaker, Congressional Research Service, Congressional Redistricting and the Voting Rights Act: A Legal Overview (2013).