The Supreme Court has a long history of declaring that the problem of racism in the United States has been solved. It did that in a series of decisions just after the Civil War, striking down civil-rights and anti-lynching laws and paving the way for decades of racial segregation. And today it has just done it again.
In Shelby County v. Holder, Chief Justice John Roberts, writing for the court, said that a key provision of the Voting Rights Act is unenforceable unless Congress rewrites it to account for the fact that racism isn’t as bad as it was in 1965, when the law was first enacted. The act requires all state and local governments with a history of voting discrimination to get federal approval before they make any changes to their voting laws. Section 4, which the court declared unconstitutional, sets forth a formula for deciding which jurisdictions are covered: Briefly, those that had a restrictive test for voting and less than 50 percent voter turnout in the 1964 presidential election.
According to Roberts, this formula has become stale. Voter turnout in covered jurisdictions is about the same for blacks and whites, many minority candidates hold office, and “literacy tests” and other tricks to keep African-Americans from voting have been banned for more than 40 years. The egregious discrimination that justified the coverage formula in 1965 has “no logical relation to the present day.” So the act is inoperative unless and until Congress enacts “another formula based on current conditions.”
The fundamental premise that drives Roberts’s analysis is the claim that there is no reliable connection between a centuries-long history of slavery, Jim Crow, and voter suppression and any present voting discrimination. But the Deep South hasn’t changed that much. Outright vote suppression has been outlawed, but white officials continue to use nasty tricks to keep blacks from voting. Justice Ginsburg, in her dissent, offers plenty of examples. Here’s one: In 2001, the all-white board of aldermen in Kilmichael, Mississippi, suddenly canceled the town’s election after an unexpected number of African-American candidates announced their intention to run. The Justice Department required an election. The town elected its first black mayor and three black aldermen.
The fact that things have gotten better hardly means that the act is no longer necessary. It may just mean that it is operating successfully. Ginsburg writes: “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.”
When it struck down the lynch laws in the 1880s, the court lectured Congress on the need to rewrite its statutes to comport with previously unheard-of constitutional limitations. No rewriting occurred. There was no more Federal civil-rights legislation until 1957.
The notion that Congress can step in to fix the Voting Rights Act by writing a new formula is equally bogus. The most notorious fact about modern American politics is that Congress is utterly paralyzed and can accomplish nearly nothing. The preclearance requirement of the Voting Rights Act is effectively dead.
Roberts writes: “There is no denying … that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.” There is a sense in which this is trivially true, the way it’s true that you can never step into the same river twice. The real question is whether racism is still powerful enough in these places to justify federal intervention. Congress thinks it is. But Roberts is sure that he knows better.
The other notorious fact is a wave of voter I.D. laws that are being enacted across the United States. These laws are being justified with the rationale that they are necessary to prevent voter fraud. But that’s a transparent lie. The evidence of such fraud actually occurring is nil. The real reason for such laws is that they reduce the voting rates of blacks and Hispanics, and therefore advantage Republican candidates. Racially motivated voter suppression is still with us. The Supreme Court has just made it easier.
Andrew Koppelman is the John Paul Stevens Professor of Law and a professor of political science at Northwestern University. His most recent book is The Tough Luck Constitution and the Assault on Health Care Reform.