Supreme Court recognizes Jim Crow’s demise, restores constitutional order

The way that Chief Justice Roberts began his opinion in Shelby County v. Holder shows what’s really at stake in the case. (Hint: it’s not whether the federal government can protect racial minorities’ voting rights.)  It really provides the key to the decision, even though, unlike many opinion preambles, it doesn’t explicitly state what the Court’s ultimate ruling is.

Parsing this opening section gives you all you really need to know about the modern Voting Rights Act, save one bit that I’ll explain afterwards.  To make this easier, I’ve grouped all the sentences by the logical points that Roberts makes – all bullet-points are direct quotes – and then summarized those points:

• The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem.
• Section 5 of the Act required States to obtain federal permission before enacting any law related to voting—a drastic departure from basic principles of federalism.
• And §4 of the Act applied that requirement only to some States—an equally dramatic departure from the principle that all States enjoy equal sovereignty.

Therefore, Point 1: The Voting Rights Act provisions at issue here are really, really unusual, outside the normal constitutional framework, and require some sort of extraordinary factual basis to support their constitutionality.

• This was strong medicine, but Congress determined it was needed to address entrenched racial discrimination in voting, “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” South Carolina v. Katzenbach, 383 U. S. 301, 309 (1966).
• As we explained in upholding the law, “exceptional conditions can justify legislative measures not otherwise appropriate.” Id., at 334.

Point 2: The really bad things going on in the Jim Crow South justified the Section 4/5 constitutional deviation.

• Reflecting the unprecedented nature of these measures, they were scheduled to expire after five years. See Voting Rights Act of 1965, §4(a), 79 Stat. 438.
• Nearly 50 years later, they are still in effect; indeed, they have been made more stringent, and are now scheduled to last until 2031.

Point 3: These were supposed to be temporary measures, so it’s notable that they’re still in effect nearly fifty years later and are due to continue for nearly thirty more years; Jim Crow must still be roaming the land.

• There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.
• By 2009, “the racial gap in voter registration and turnout [was] lower in the States originally covered by §5 than it [was] nationwide.” Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 203–204 (2009) [“NAMUDNO”].
• Since that time, Census Bureau data indicate that African-American voter turnout has come to exceed white voter turnout in five of the six States originally covered by §5, with a gap in the sixth State of less than one half of one percent. See Dept. of Commerce, Census Bureau, Reported Voting and Registration, by Sex, Race and Hispanic Origin, for States (Nov. 2012) (Table 4b).

Point 4: Actually no, and indeed there doesn’t seem to be any evidence that racial minorities, or at least blacks, are systematically disadvantaged versus whites in terms of the right to vote – certainly not in Section 5 jurisdictions.

• At the same time, voting discrimination still exists; no one doubts that.
• The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements.
• As we put it a short time ago, “the Act imposes current burdens and must be justified by current needs.” NAMUDNO, 557 U. S., at 203.

Point 5: Racial discrimination in voting hasn’t been fully eradicated, of course, but does it really still exist in the same widespread, systemic way such that all those extra-constitutional measures – and the burdens they put on our federal structure – are still justified?  After all, we’ve said repeatedly that remedies need to match wrongs.

After reading and digesting that framing – which I honestly can’t see as disputable in any way – this case becomes rather easy: the Court must restore the constitutional order, the status quo ante the temporary Sections 4/5, because there is no longer systemic racial disenfranchisement, or at the very least in the covered jurisdictions.  (Justice Ginsburg’s dissent goes much more to the question of who gets to decide whether the facts on the ground justify continued application of Section 5, Congress or the courts.  As a proponent of judicial review and engagement, I see the role of judges as saying what the law is rather than avoiding such rulings – but that debate is beyond the scope of this essay.)

In other words, the following questions are completely irrelevant to this case: Does racial discrimination still exist?  Does racial discrimination in voting still exist?  Is racial discrimination in voting more common in Section 5-covered jurisdictions than elsewhere?

Even if the answer to all those questions is yes – which it is to the first two but not the third – that’s not enough to uphold the Section 4/5 preclearance regime.  Instead, the only question that matters is whether the “exceptional conditions” and “unique circumstances” of the Jim Crow South still exist such that an “uncommon exercise of congressional power” is still constitutionally justified – to again quote the 1966 Katzenbach ruling that approved Section 5 as an emergency measure.

The answer to that question must be no; to hold otherwise is to insult those who fought for civil rights against fire hoses, dogs, Klansmen, and segregation laws.  At the very least, political conditions have changed such that the forty-year-old voting data upon which Section 4 relies now subjects a seemingly random collection of states and localities to onerous burdens and unusual federal oversight.

As Chief Justice Roberts wrote for the Court the last time it looked at this law (NAMUDNO, in 2009), the “historic accomplishments of the Voting Rights Act are undeniable,” but the modern uses of Section 5 “raise[] serious constitutional concerns.”

Yet Congress renewed Section 5 in 2006 without updating the Section 4 formula, and it ignored the Court’s warning that “the Act imposes current burdens and must be justified by current needs.”  Accordingly, it should be no surprise that the Chief Justice, again writing for the Court, noted that “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.”

For example, as came out at oral argument, on the measures originally used to determine which jurisdictions should be covered by Section 5 – racial disparities in voting and voter registration – Massachusetts is the worst offender, while Mississippi is our national model.  (Full disclosure: After law school, I clerked for a Fifth Circuit judge in Jackson and had a grand time in the Magnolia State. Also, I’m a Boston Red Sox fan.)

As the Chief Justice wrote in Shelby County, even if one views the thousands of pages of congressional record related to the 2006 reauthorization in their best light, “no one can fairly say that it shows 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.”

Moreover – and this was the extra bit I alluded to in the second paragraph above – it is Section 2, the nationwide ban on racial discrimination in voting, that is the core of the Voting Rights Act, and it remains untouched. Section 2 provides for both federal prosecution and private lawsuits, and allows prevailing parties to be reimbursed attorney and expert fees.  As I described in my last SCOTUSblog essay on this case, there is no indication that Section 2 is inadequate.

Sections 4 and 5, meanwhile, were supposed to supplement Section 2 – and they succeeded brilliantly, overcoming “widespread and persistent discrimination in voting.”  As Justice Thomas wrote in NAMUDNO, acknowledging the unconstitutionality of this part of the law “represents a fulfillment of the Fifteenth Amendment’s promise of full enfranchisement and honors the success achieved by the VRA.”

Of course, the Court really should’ve gone further, as Justice Thomas pointed out in his concurring opinion. The Court’s explanation of Section 4’s anachronism applies equally to Section 5.