Shelby Commentary: What does the Court’s decision mean?

I have called the Voting Rights Act of 1965 (VRA) a “sacred symbol” of American democracy.  For that reason, the Supreme Court’s momentous decision holding unconstitutional a part of the Act – Section 4, for short — that had continued to apply, nearly fifty years later, uniquely to the South, is itself laden with deep symbolic meaning.  But what is that meaning?

In truth, the decision will express such radically different meanings to different people that we will not be able to forge common ground regarding even the threshold question of what the decision is “about.”  Starting from such irreconcilable symbolic places, any discussion of the actual opinions themselves will be almost beside the point.

To those who will be distraught, outraged, or fearful, the essential question at stake in the Court’s decision – and in the continuing vitality of Section 4 — is whether we believe racial discrimination in voting still exists in the South.  The question being framed this way, the Court’s decision today will appear to be, at best, a denial of reality and a reflection of a naïve “post-racial” view that in the Obama era, racial discrimination in voting has ended.   Justice Sotomayor, at oral argument, perfectly reflected this perspective on what the decision represents when she posed this pointed question to the VRA’s challengers:   “Do you think that racial discrimination in voting has ended, that there is none anywhere?”  The answer to that question must be no.  From this vantage point, then, as long as racial discrimination in voting still does take place at all in the South, Section 4 of the VRA – the part the Court invalidated – remains not just justifiable, but essential.

In addition, to many people, the VRA symbolizes protection of the crown jewel of rights, the right of access to the ballot box.   For those who know the history, this right was born from the blood and the bodies of all those who had been given the last full measure of their devotion to secure full access for all to the ballot box – those beaten on the bridge from Selma, Alabama in 1965, the three civil rights workers lynched in the Mississippi summer of 1964, and many others.  How can the Court find unconstitutional an Act that plays any role at all in ensuring political equality regarding this most sacred right?  And why should the Court second-guess Congress on these issues?

Yet to others, including the Court’s pivotal actor, Justice Kennedy, the essential question at stake is whether our political system is frozen in place on issues concerning race.  Do our political institutions and culture have the capacity to recognize that dramatic changes at the intersection of race and voting have taken place over recent decades?  Section 4 was created in 1965 as a short-term measure for five years; in initially upholding that system, the Court called it “an uncommon exercise of congressional power” justified by the “exceptional circumstances” of the massive disfranchisement of black voters (and many poor whites) that existed when the VRA was enacted.  In 1970, Congress extended this system for another five years; in 1975, for another eight; and in 1982, for twenty-five more years.   Then, in 2006, in the provision the Court struck down, Congress re-authorized this system for another twenty-five years, until 2031.  Thus we moved from a five-year regime in 1965 for exceptional circumstances to a sixty-six-year regime that continues to single out nine states (and fifty-three other counties) for unique federal control.

But of even more symbolic significance, from this perspective:  these areas all became covered because of their voting practices in 1964 or, at the latest, 1975 – nearly forty years ago.  And these are the same areas, and nearly the only areas, that have remained covered ever since.  Though the Act formally creates a mechanism to permit these areas to prove their current entitlement to be relieved of coverage, this part has never been a meaningful way for the Act to unwind itself from within:  fewer than one percent of all the counties originally covered that have significant minority populations have ever emerged from the Act.  From this vantage point, the question the case was “about,” then, is this:  how can Congress act as if nothing significant enough has changed in the last forty years to justify any meaningful change at all in Section 4?  Even if areas of discriminatory voting practices remain, surely they cannot mirror so exactly the areas of which this was true forty or fifty years ago.

From this starting place, Section 4 symbolizes that the issue of race remains so charged that our political system lacks the capacity to move forward to any extent at all.  As Justice Kennedy put it at the argument:  Congress “should use criteria that are relevant to the existing [conditions] – and Congress just didn’t have the time or the energy to do this; it just re-enacted it.” And despite the popular image that Section 4 is about protecting access to the ballot box, Section 4 long ago in practice became more about racial redistricting than access to the ballot box.  While the Justice Department in recent decades blocked access changes on average fewer than twice a year, it blocked redistrictings nearly fourteen times as often.  Indeed, in the 2006 Act itself, Congress itself did not rely primarily on ballot-box access problems to justify renewing Section 4, but on issues like redistricting.  If Section 4 is “about” access to the ballot box in the public imagination, to the Court majority, I suspect, Section 4 is about racial redistricting.

But who will be able to cut through these radically irreconcilable meanings of the Court’s decision and lead forward on these explosive issues?  No one is better positioned than President Obama.  Having taught about the VRA for years as a law professor, he knows these issues – their history, their legal and policy consequences – thoroughly.  Having run for office, state and national, he understands them from the perspective of the democratic process on the ground.  And his natural temperament, honed by years of reflection about exactly these issues, is to appreciate the pull of both sides of this symbolic and practical struggle.  Many voters, white and of color, chose him precisely in hope of his potential to move us forward on these and similar issues.  I have written many times elsewhere (see here and here, for starters) on the direction I believe future voting-rights policy should take, were the Court to strike down Section 4.  I will write more about that question, but for now, voting-rights advocates should reflect seriously about whether the Section 4/5 model from 1965 is effectively adapted to today’s circumstances or whether a different model of voting-rights protection – one that does not try to predict in advance the areas of the country in which inappropriate voting-rights barriers might arise, and which does not require proof of racial discrimination but protects the right to vote robustly regardless of where those barriers might emerge and which voters are wrongly denied access – would be more powerful in eliminating the remaining barriers to full political participation.

Absent the Court’s decision, President Obama might have avoided these issues, despite his deep engagement with them.  But the Court’s decision, and the arc of his own life, now thrusts him to center stage.