June 25, 2013 – The Supreme Court Decides Shelby County v. Holder

In the opinion issued in Shelby County v. Holder on June 25, 2013, part of the Voting Rights Act of 1965 was invalidated by the Supreme Court.

Chief Justice Roberts, delivering the opinion for the court, wrote:

Not only do States retain sovereignty under the Constitution, there is also a ‘fundamental principle of equal sovereignty’ among the States. Over a hundred years ago, this Court explained that our Nation ‘was and is a union of States, equal in power, dignity and authority.’ Indeed, ‘the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.’ [citations omitted]”

He went on to explain that in the opinion of the Court, The Voting Rights Act sharply departs from the basic principles of equal sovereignty among the states. While admitting that “voting discrimination still exists; no one doubts that” the court averred the issue was whether the Act’s “extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements.” His answer was no.

Justice Roberts - Happy White Male Voter

Justice Roberts – Happy White Male Voter

Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, issued a thirty-seven-page dissent, arguing, inter alia, that one doesn’t throw out the umbrella in a rainstorm just because you are not getting wet. Indeed, as soon as the “umbrella” was discarded by the court, Southern states immediately moved to give people of color a soaking. Within two hours of the ruling, Texas announced a voter identification law would go into effect, along with redistricting. Other states soon followed. As The Brennan Center reported in 2016:

Voters in 14 states will face new voting restrictions for the first time during a presidential election this year. Those 14 states are: Alabama, Arizona, Indiana, Kansas, Mississippi, Nebraska, New Hampshire, Ohio, Rhode Island, South Carolina, Tennessee, Texas, Virginia, and Wisconsin.

The number was 17 as recently as July, but recent court rulings blocked restrictive measures in Georgia, North Carolina, and North Dakota. Despite a recent court victory mitigating the impact of Texas’s photo ID law, it is still counted because the measure is more restrictive than the previous requirement.”

10.3.12VoterID-610x475

The movement for additional voter ID laws are proceeding apace. As Charles Blow wrote:

While Republicans may claim that voter ID laws are about the sanctity of the vote, Republican power brokers know they’re about much more: suppressing the votes of people likely to vote Democratic. …Rob Gleason, the Pennsylvania Republican Party chairman, discussed the effects of his state’s voter ID laws on last year’s presidential election, acknowledging to the Pennsylvania Cable Network: “We probably had a better election. Think about this: we cut Obama by 5 percent, which was big. A lot of people lost sight of that. He won — he beat McCain by 10 percent; he only beat Romney by 5 percent. I think that probably voter ID helped a bit in that.”

Justice Ginsberg basically predicted as much in her dissent:

The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. With that belief, and the argument derived from it, history repeats itself. The same assumption—that the problem could be solved when particular methods of voting discrimination are identified and eliminated—was indulged and proved wrong repeatedly prior to the VRA’s enactment. Unlike prior statutes, which singled out particular tests or devices, the VRA is grounded in Congress’ recognition of the “variety and persistence” of measures designed to impair minority voting rights. In truth, the evolution of voting discrimination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclearance remains vital to protect minority voting rights and prevent backsliding. [citations omitted]”

In a cogent article for The New York Review of Books, Justice John Paul Stevens wrote about the decision in what amounted to a strong endorsement of Justice Ginsberg’s dissent.

Justice John Paul Stevens

Justice John Paul Stevens

He contends that, first of all, the Court’s reliance of the principle of equal sovereignty among the States, is entirely without merit. His explanation is worth quoting at length:

Article I, Section 2 of the Constitution created a serious inequality among the states. That clause counted “three fifths” of a state’s slaves for the purpose of measuring the size of its congressional delegation and its representation in the Electoral College. That provision was offensive because it treated African-Americans as though each of them was equal to only three fifths of a white person, but it was even more offensive because it increased the power of the southern states by counting three fifths of their slaves even though those slaves were not allowed to vote. The northern states would have been politically better off if the slave population had been simply omitted from the number used to measure the voting power of the slave states.

The fact that this “slave bonus” created a basic inequality between the slave states and the free states has often been overlooked, as has its far-reaching impact. In 1800, for example, that bonus determined the outcome of the presidential election since it then gave the southern states an extra nine or ten votes in the Electoral College, and Thomas Jefferson prevailed over John Adams by only eight electoral votes. Because of the slave bonus, Adams served only one term as president.

The slave bonus unfairly enhanced the power of the southern states in Congress throughout the period prior to the Civil War. It was after the war that Section 2 of the Fourteenth Amendment, passed in 1868, put an end to the slave bonus. When the Fifteenth Amendment was ratified in 1870 during the Grant administration, the size of the southern states’ congressional delegations was governed by the number of citizens eligible to vote. Since that number included blacks as well as whites, during Reconstruction those states were no longer overrepresented in either Congress or the Electoral College.

After reconstruction ended, however, the terrorist tactics of the Ku Klux Klan and other groups devoted to the cause of white supremacy effectively prevented any significant voting at all by African-Americans, thus replacing a pre-war three-fifths bonus with a post-Reconstruction bonus of 100 percent of the nonvoting African-Americans. Thus, for almost a century—until the VRA was enacted during President Johnson’s administration—the southern states’ representation in Congress was significantly larger than it should have been.

Both the underrepresentation of blacks and the overrepresentation of white supremacists in the South during that period contradict the notion that the “fundamental principle of equal sovereignty among the States” is a part of our unwritten Constitution. [my emphasis]”

Furthermore, Stevens objects to the idea that the determination of whether the need for preclearance is still justified should be made by the Supreme Court rather than by the members of Congress:

The several congressional decisions to preserve the preclearance requirement—including its 2006 decision—were preceded by thorough evidentiary hearings that have consistently disclosed more voting violations in those states than in other parts of the country. Those decisions have had the support of strong majority votes by members of both major political parties. Not only is Congress better able to evaluate the issue than the Court, but it is also the branch of government designated by the Fifteenth Amendment to make decisions of this kind.”

Finally, Justice Stevens also objected to the way the ruling avoided the rule of judicial restraint. As he explains, normally, in a so-called facial challenge, the plaintiffs challenging the constitutionality of a federal statute are required to convince the Court that the statute is invalid under all circumstances.

Justice Ginsburg

Justice Ginsburg

In an interview, Justice Ginsburg revealed her lack of surprise at the immediate response to the decision in Shelby County v. Holder, saying:

The notion that because the Voting Rights Act had been so tremendously effective we had to stop it didn’t make any sense to me,” Ginsburg said in a wide-ranging interview late Wednesday in her office at the court. “And one really could have predicted what was going to happen. … I didn’t want to be right, but sadly I am.”

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