The Supreme Court’s decision in Shelby County v. Holder effectively kills the most successful weapon our nation has ever produced against racial discrimination in voting, says constitutional and election law expert Gregory Magarian, JD, professor of law at Washington University in St. Louis.
“Until today, the Voting Rights Act required certain states and counties with a history of voting discrimination, mostly in the South, to obtain ‘preclearance’ from the federal government before they could make any changes in their voting procedures,” he says.
“The Court today struck down only the formula for determining which states must seek preclearance (Section 4 of the Voting Rights Act), not the preclearance requirement itself (Section 5). But as Justice Ruth Bader Ginsburg points out in dissent, the government can’t enforce Section 5 without a coverage formula. The idea that Congress, in the foreseeable future, would act to replace Section 4 is laughable.”
Magarian says the Court’s decision reflects a victory for two big ideas: state power, at the expense of racial justice; and judicial power, at the expense of democracy. His comments follow:
The Court’s decision is actually very simple in its reasoning. Justice Antonin Scalia, at oral argument, summarized Chief Justice John Roberts’ majority opinion before it was written: protection for voting rights is a “racial entitlement” that must give way to states’ sovereignty. Most of the opinion’s analysis depends on the idea that the Section 4 coverage formula violated the principle of “equal state sovereignty.”
Nowhere in the Constitution does that phrase, or any synonymous phrase, appear. It is a constitutional mandate of the Court’s own pure fabrication. The idea of “equal state sovereignty,” however, has impressive historical roots: it was a favorite rhetorical device of slave states before the Civil War.
The Court has the power to declare acts of Congress unconstitutional. Ordinarily, I have little use for abstract complaints about “judicial activism.” But in this case, Congress legislated pursuant to a specific grant of power in the 15th Amendment, acting to remedy perhaps the most profound and persistent social problem in our nation’s history, after careful consideration and based on a dark, massive history of voting discrimination.
The Court should not lightly overrule that sort of congressional judgment. In today’s decision, however, the Court essentially substitutes for Congress’s well-considered judgment the opinion of five Justices that racial discrimination in voting just doesn’t matter much anymore.
The idea that measures designed to achieve racial equality are nothing more than “racial entitlements” has been a favored shibboleth of the far right from the Confederacy through the John Birch Society and right up to the Tea Party. Today’s decision does nothing more or less than write that far right dogma into law.