How big is Shelby County?

Ellen D. Katz is the  Ralph W. Aigler Professor of Law, University of Michigan Law School.

Earlier today, the Supreme Court ruled that Section 4(b) of the Voting Rights Act is unconstitutional. Writing for the Court, Chief Justice John Roberts explained that “things have changed dramatically” for the better in the places subject to the VRA’s regional provisions,that “these improvements are in large part because of the Voting Rights Act,” and all this means the once-justified strict supervision of mostly southern jurisdictions’ election rules is no longer warranted.  In other words: “Mission accomplished.

Shelby County v. Holder is a consequential holding. The decision terminates the most successful and salient piece of civil rights legislation in American history. This is the law that ended the rampant race-based disenfranchisement that defined the Jim Crow South, and it is the law that has repeatedly enabled minority voters to cast ballots and elect representatives of choice in places where they otherwise would not have been able to do so.

The regime Shelby County shuts down has recently blocked a host of fresh discriminatory electoral practices. Just last summer, it kept Texas from implementing discriminatory redistricting plans and a deeply problematic voter ID measure.Last fall, the regime helped reshape South Carolina’s voter ID requirement to lessen the burdens it posed to minority voters.  That case prompted a U.S. District Judge, John Bates, to observe the statute’s “continuing utility in deterring problematic” voting changes.

Today’s ruling scraps this regime by discarding the formula that subjected specific jurisdictions to the VRA’s regional requirements.  Until today, public officials in places that had very low voter participation on specified dates needed to demonstrate to federal officials that proposed electoral changes were nondiscriminatory before implementing those changes. Shelby County eliminates the coverage formula, which means no jurisdiction today is required to seek “preclearance.” In other words, it guts what made the regime effective.

The Court’s willingness to dispose of the coverage formula – and, for all practical purposes – the preclearance requirement makes Shelby County a sweeping and deeply troubling decision.  And yet, there is reason to think that Shelby County will be even more far-reaching than that.

Two significant aspects of the decision explain why.  The first is the Court’s refusal to defer in any significant way to Congress’s judgment that the preclearance regime remains necessary, and the second is the Court’s own reason for disagreeing with that judgment.

Regarding deference, not that long ago, the Justices believed Congress held something close to plenary power when it crafted remedies addressing racial discrimination in voting. In case after case, the Justices made clear that they would not second-guess congressional judgments on the subject.  Even as the Justices began looking more rigorously at particular types of congressional remedial action elsewhere, they repeatedly distinguished the invalidated laws from the VRA and celebrated provisions like preclearance as paradigmatic examples of permissible congressional action.

Not so today. In a blanket judgment, the Chief Justice flatly rejects Congress’s judgment that preclearance provides a necessary safeguard and that places subject to its requirements still warrant distinct treatment.  The Court was clearly unhappy with what it perceived to be a lack of deliberation on the part of Congress, with support for reauthorization of the statute largely predating the assembly of a record to justify it.  Critics of Congress have laid, and undoubtedly will continue to lay, blame with Congress for failing to update the formula and adding amendments in 2006 that broadened the statute’s regulatory reach.  And it seems fair to say that Congress would indeed have made the Chief Justice’s decision more difficult had it altered the formula for coverage in response to the facts gathered at its extensive hearings.

And yet, Congress did assemble a lengthy record with evidence supporting its own judgment that the VRA’s preclearance requirement is necessary and important in covered jurisdictions. Shelby County’s dismissal of that legislative judgment markedly breaks from precedent upholding congressional discretion in this realm.  The decision significantly diminishes Congress’s ability to craft future remedies for racial discrimination in voting and beyond.  Indeed, after today, an administrative agency acting within the sphere of its expertise enjoys more discretion than does Congress when acting in the realm in which its power was once viewed to be at its apogee.

At oral argument last winter, Justice Kagan bristled at the notion that the Court, rather than Congress, was the proper institution to decide when remedial action in this realm was needed. Justice Scalia was nevertheless convinced that “[t]his is not the kind of question you can leave to Congress.” Today’s decision makes clear that a majority of the Court shares this view. Earl Warren would have been astounded.   William Rehnquist, too.

As notable is the Court’s own reason for deeming preclearance obsolete. To see why, consider what will happen in once-covered jurisdictions now that the VRA’s preclearance obligation has been lifted.  This is not difficult to do.

No one, of course, thinks that Jim Crow will return full force as a result of today’s decision. It is not plausible to think that scores of public officials will once again openly and routinely defy federal law and explicitly endorse race-based denials of fundamental rights.

At the same time, there is little doubt that, absent preclearance, minority voters in covered jurisdictions will confront new obstacles making political participation more difficult. Indeed, within hours of today’s decision, Texas moved to implement redistricting plans and a voter identification measure that federal courts had blocked just last year, holding that they were discriminatory within the meaning of Section 5.

It is true, of course, that harsh voter ID requirements and burdensome districting boundaries are not unique to covered jurisdictions. Nevertheless, Congress had evidence showing electoral devices that burden minority voters are found disproportionately in covered jurisdictions, and that these devices tend to be more severe and restrictive than those used in places outside the reach of the VRA’s regional requirements.

The Chief Justice’s opinion today is as indifferent to this evidence as it is to evidence indicating that observed regional disparities would have been far larger in the absence of the preclearance requirement.  His opinion seems prepared to accept that, as a result of the ruling, minority voters in (formerly) covered jurisdictions will confront more severe and more numerous burdens even than those faced by both minority voters elsewhere and by white voters at home. The majority nevertheless deemed this consequence to be of no moment so long as the new burdens do not amount to “anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time.”  Nothing short of that, it seems, will do.

Shelby County’s greatest import may lie in this supposition – namely, the majority’s belief that the validity of the coverage formula requires that those subject to preclearance currently engage in the sort of defiant obstructionism that made the VRA necessary in the first instance.

But specific acts traceable to public officials openly bent on denying norms of equality capture but a portion of the ways racial discrimination operates today. Put differently, the conditions that made preclearance necessary in the first instance have shaped the modern landscape in ways that create distinct opportunities for more subtle forms of discrimination, including intentional discrimination, to thrive.  Many or even most public officials may act without ill will, but still intentional discrimination from some and the implicit biases of many may generate substantial obstacles for minority voters in the political process. Today’s decision makes clear that such obstacles are insufficient to justify the coverage formula and an operational preclearance regime.

In short, the idea seems to be: no George Wallace, no preclearance.

Shelby County closes with the Chief’s disclaimer that nothing in his opinion calls into question the remainder of the Voting Rights Act. Whether he means that remains yet to be seen. Perhaps evidence of defiant obstructionism will prove necessary only when Congress crafts a regime like preclearance with its “extraordinary” burden-shifting requirements. Perhaps Congress still has leeway to address other forms of racial discrimination so long as it does so through more conventional mechanisms than preclearance. Only time will tell whether we wind up needing George Wallace for Section 2.