Shelby County v Holder and the flaw in the Voting Rights Act

By the typical 5-4 majority, the Supreme Court has struck down one of the provisions of the Voting Rights Act of 1965. The provision in question sets the criteria for subjecting specified parts of the country to "preclearance" of any changes proposed to local voting laws. Writing for the majority in Shelby County v. Holder, Chief Justice Roberts takes a position that at first glance seems atypical for the Court's conservatives: a law was once constitutional but now isn't, without amendment to the Constitution. What Roberts actually means, as a closer reading will show, is that an exception to the constitutional rule was justified in 1965, but isn't justified today. He concedes that the exceptional scope of the Voting Rights Act was justified by the exceptional violations of civil rights prevailing in some places at that time. Exceptional legislation was justified (i.e. "constitutional") to correct such offenses as poll taxes, literacy tests, and worse. The conservative argument now is that the success of the Voting Rights Act should result in its eventual retirement. The communities originally subjected to preclearance have not practiced discrimination in decades. To keep them in a probationary condition long after the fact is to violate the constitutional principle of equal sovereignty. To argue, as a minority of the Court did, that the provision in question remains necessary as a deterrent to the communities reverting to old practices is to render the provision, in Roberts's words "effectively immune from scrutiny." Such an exceptional provision as the one struck down, he argues, should not enjoy such immunity, while to assume a permanent necessity for a deterrent provision is implicitly to reduce the targeted communities to permanent second-class status.

On a constitutional level, I think Roberts hit the bulls eye. The well-meaning authors of the Voting Rights Act brought this decision down upon their descendants because, in typical American fashion, they went about things in a half-assed federalist manner. 1965 was the moment, when the prestige of Lyndon Johnson and the Civil Rights movement, not to mention the power of the former, were at their heights, to push through, by legislation or amendment, a single federal standard for election law. By not doing so -- whether because they chickened out or because of cynical double standards -- they left their legislation vulnerable to some eventual equal-protection or equal-sovereignty challenge. Common sense should have dictated that an exceptional-conditions justification for constitutionally questionable measures would have a limited lifespan. Of course, a limited lifespan was written into the original legislation, which has been renewed periodically with minor tweaks that failed to address the ultimate constitutional problem. The drafters of the 1965 act may not have expected it to remain even partially in force now. It has endured in part, as Justice Scalia observed cynically during oral arguments, because a vote against renewing it was bound to be portrayed as voting against voting rights for minorities. Even now, the fact that an Alabama county sued the Attorney General , with today's result, begs the question: what do you actually want to do so badly that you feel you can't now? If you don't trust Alabama, that's fine; there may well be good reason not to trust Shelby County. But I think the Roberts Court isn't being unreasonable -- apart from Justice Thomas, who wants to whittle away at the VRA even more -- in insisting that the remedy for any potential offense not be applied selectively. Instead of griping over the evil intentions of the Chief Justice and his Republican sponsors, Democrats, liberals, civil-right activists, and the "left" in general would put their outrage to better use by starting a push for a constitutional amendment setting a single standard for voting rights and elections in general everywhere in the country.