I am going to take a look at a fairly representative right-wing way of looking at the Supreme Court’s 5-4 ruling in Shelby County v/ Holder. It’s part dishonesty and part self-delusion. The author is Jonathan Tobin who writes for Commentary. He begins by accusing the left of hyperbole.
Listen to the hue and cry from liberals over the Supreme Court’s decision today in Shelby County v. Holder and you would think the conservative majority had just overturned Brown v. Board of Education or declared discrimination on the basis of race to be legal. Of course, the 5-4 decision on the future of the Voting Rights Act did nothing of the kind.
As i pointed out in a prior post, Justice Ginsburg’s dissent discusses the Congressional Record from 2006 reauthorization of the Voting Rights Act. Congress discovered roughly 1,800 instances between 1982 and 2006 in which areas covered by Section 4 of the Act were prevented from enacting voting laws that were discriminatory in nature. That averages out to 67 attempts to discriminate per year, every year, for 24 straight years.
There are three sections of the Voting Rights Act that are directly relevant to the Supreme Court’s ruling. Section 2 of the Act allows anyone from any jurisdiction to challenge a governmental entity that attempts to discriminate in the electoral process. But this is almost always done after the fact. Someone was denied the right to vote, or a class of people had their vote suppressed, or districts were used that were discriminatory in nature. Section 4 defines which areas of the country have a history and record of racial discrimination and
must get advanced clearance under Section 5 in order to make any changes in the election laws.
The Supreme Court invalidated the formula that Congress used to craft Section 4, which means that no jurisdictions are currently subject to Section 5. If the law had been the way it is now between 1982 and 2006, all 1,800 violations would have had to have been addressed under Section 2, which would have almost always have been too late. Moreover, the Department of Justice probably would not have brought action in many of those cases due to lack of resources and information, meaning that individual citizens would have had to spend their own resources if they wanted justice.
So, keep this in mind when you read this next part.
The high court not only reaffirmed the validity of the act but also even left in place Section 5, which created a mechanism that would require pre-clearance by the federal government of any changes in voting procedures in states and localities that were deemed by Congress to be habitual violators of the right to vote. But what it did do was to declare the existing formula stated in Section 4 to be the places where such scrutiny would be carried out to be unconstitutional.
Without Section 4, affirming the validity of Section 5 is meaningless. What follows, closely hews to Chief Justice Roberts’ reasoning, but it’s fatally flawed.
The reason for this is so obvious that it barely deserves to be argued: the Jim Crow south that Congress put under the federal microscope five decades ago isn’t the same place today. If there is to be a formula that would require some places to get the government’s prior permission to do anything that affects voting, it should be one based on the current situation, not one crafted to deal with the problems faced by Americans during the Lyndon Johnson administration.
Again, you can see how wrong this by looking at Ginsburg’s dissent where she discusses the formula.
Congress may have been charged with rigidity had it afforded covered jurisdictions no way out or ignored jurisdictions that needed superintendence. Congress, however, responded to this concern. Critical components of the congressional design are the statutory provisions allowing jurisdictions to “bail out” of preclearance, and for court-ordered “bail ins.” See Northwest Austin, 557 U. S., at 199. The VRA permits a jurisdiction to bail out by showing that it has complied with the Act for ten years, and has engaged in efforts to eliminate intimidation and harassment of voters. 42 U. S. C. §1973b(a) (2006 ed. and Supp. V). It also authorizes a court to subject a noncovered jurisdiction to federal preclearance upon finding that violations of the
Fourteenth and Fifteenth Amendments have occurred there. §1973a(c) (2006 ed.).
A jurisdiction included under Section 4 could take steps to get removed from preclearance requirements under Section 5. And a jurisdiction not included under Section 4 could be placed there if they demonstrated a pattern of systemic racial discrimination. The list of covered jurisdictions was not based on the Johnson Era.
