At issue is what’s called “preclearance”: nine states and several counties in other ones with bad records of denying minorities access to the right to vote had to send any changes to their election laws to the Department of Justice (or, as Roberts put it, “beseech the Federal Government”), which would have sixty days to object or ask for more information. Though not all of these jurisdictions are in the South—Alaska is on the list (the Times has a good map)—most of them are, and the requirement clearly has roots in the troubled history of voting rights in the region. And it was to the idea that history is still alive that Roberts seemed most to object.
“Inspired to action by the civil rights movement, Congress responded in 1965 with the Voting Rights Act,” Roberts wrote, as though all it took then were a few emotional appeals rather than urgent demands and the lives of civil-rights workers who were murdered in the South—young people who, had they lived, would be younger than some of the Justices today. He went on to emphasize how very long ago that was, mentioning “40-year-old facts having no logical relation to the present day,” and that “history did not end in 1965.” Indeed it did not. The V.R.A. was reauthorized several times; what Shelby County was challenging in the case is formally known as the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006. It passed the Senate 98-0, and the House 390-33.
Roberts was scornful of the idea that Congress had thought much about what it was doing when it took those votes. He did not explicitly repeat his fellow Justice Antonin Scalia’s assertion, made in the oral arguments for the case (which I wrote about at the time), that Congress was a weak hostage to racial politics. (Scalia had explained that Congress voted the way it did “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”) Instead, he called Congress “irrational,” and seemed dismayed that Congress didn’t see, as he did, a country transformed by a sixties-era magic wand: “We cannot pretend that we are reviewing an updated statute, or try our hand at updating the statute ourselves, based on the new record compiled by Congress.”
And yet, as Ginsburg noted in her dissent (in which she was joined by the Court’s other liberals), there was a new record, after extensive hearings:
Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. ….One would expect more from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation.
What that record shows, she wrote, is that, although things have gotten a lot better, they have done so because of constant and still necessary vigilance: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” The regions covered by the part of the Act that was struck down, Section 4, have, in recent years, been twice as likely as those not covered to have proven violations under other sections of the Act. One of the covered states, Mississippi, responded to the ruling with a press release about how the implementation of a voter-identification law, held up by preclearance, “begins today.” The V.R.A. also has a mechanism for allowing jurisdictions to “bail out” if they can show that they’ve gone ten years without violations: “Nearly 200 jurisdictions have successfully bailed out of the preclearance requirement, and DOJ has consented to every bailout application filed by an eligible jurisdiction since the current bailout procedure became effective in 1984.”
Why didn’t Shelby County just take that route? Because its own attempts to subvert the franchise were too recent. “As applied to Shelby County, the VRA’s preclearance requirement is hardly contestable,” Ginsburg wrote, and the same could be said about Alabama as a whole. Ginsburg quoted an F.B.I. investigation of Alabama legislators who referred to black voters as “Aborigines” and talked about how to keep them from the polls: “These conversations occurred not in the 1870’s, or even in the 1960’s, they took place in 2010.” Racial discrimination in the area of voting rights is something that the Fifteenth Amendment explicitly empowers Congress to address; in Ginsburg’s view, the conservatives on the Court have a tendency to treat that and other “Civil War Amendments” as second class.
The Roberts decision leaves room for Congress to update its formula for figuring out who needs preclearance—just as long as it doesn’t hold what it regards as ancient history against anyone. (Clarence Thomas, in a concurrence, said that he would have thrown the whole thing out.) And there is an argument that Congress could come up with a better, broader measure, one that could help deal with voting-day machinations in places like Cleveland and Miami. (This does not seem like the Congress to make that happen, though.) But, as Ginsburg writes, that does not render the law as it stands unconstitutional or unnecessary.
Ginsburg made another point: that “racial polarization in voting” makes the Act more relevant than ever. In other words, if one party sees that another attracts more minority votes—and we have seen this—it can have a motive for playing with the laws and moving polling stations to suppress turnout, a motivation that has to do with power rather than with simple, crude, racism. This is why the Roberts vision of transcendent American niceness is inadequate. Eight months after a Presidential election that saw bitter fights over voter suppression, it is highly odd for the Court to be calling such concerns quaint. Roberts does concede that there is still racial discrimination, and that it might even be a problem for voting—he just treats it as something that has dissipated like a mist, thinly and evenly distributed in the American air, not needing the “extraordinary” measures of the V.R.A. And we are not done with history yet.
Original Article
Source: newyorker.com
Author: Amy Davidson
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