One of the lasting impressions from the Supreme Court battle over Obamacare was that Chief Justice Roberts managed to craft an opinion that politically saved face for both the administration and the court but was able to deliver a potentially deadly blow to the federal-state partnerships many social programs depend on. We have every reason to think he’s poised to do something similar with the Voting Rights Act.
Shelby County v. Holder takes on directly the most successful components of the VRA. The parts of the law at issue, Sections 4 and 5, require certain state, counties, cities, and local subdivisions with a history of racial discrimination in their elections to get clearance from Washington before they put into effect any change in their election or voting procedures. Section 5 establishes pre-clearance procedure and Section 4 sets the formula, or the trigger, for which jurisdictions need that pre-clearance. Section 5 gets all the attention because it is the most obvious in addressing systemic racial discrimination in that it takes away local power of self-governance from those municipalities where the evidence shows that power was abused to disenfranchise minorities. Conservatives hate it because, issues of racial animus aside, it offends every bit of their understanding of the division of power between the federal government and the states.
But it’s not Section 5 of the VRA we should be worried about. It’s Section 4. The Roberts court has an out that would have almost equally devastating consequences as striking the law entirely, but allow the Chief Justice to avoid having his legacy tied to killing off the VRA. One of the main critiques of the VRA is that Section 4 uses data from 1972 as its base to determine what jurisdictions are covered and subject to pre-clearance. In Northwest Austin v. Holder, the voting rights challenge from four years ago, Justice Roberts focused much of his ire with the coverage formula, suggesting that while the overall contours of the VRA may still have some relevance in combating racial discrimination in voting, the court was very skeptical of any conclusions that could be drawn from data that old. This time around the court could strike Section 4 and say that Section 5 can only be enforced if this coverage formula is updated. This would kick the issue back to Congress, and if the fight for the renewal of the Violence Against Women Act is any indication, we all know how that would turn out. Section 5 would stand, but it would be gutted, effectively unenforceable until Congress could agree on a new formula for which states need election monitoring.
The immediate effects alone would be disastrous. As Ari Berman breaks down, six of the nine fully covered states under Section 5 have passed new voting restrictions, including Voter ID laws, limits on early voting and restrictions on voter registration since 2010. By comparison, non-covered jurisdictions passed only one-third of those kinds of restrictions. It also matters because many of these states, like Texas and Virginia in particular, are on the cusp of significant electoral change that could shift power away from conservatives—presuming no efforts to restrict voting are permanent of course.
During the argument Justice Elena Kagan observed that those challenging the VRA were asking a conservative court, not Congress who is charged with holding hearings and creating conclusions of fact, to decide that racial discrimination in voting had been solved—an extraordinarily undemocratic request in many ways. Justice Ruth Bader Ginsburg noted that while the South has come far from the early days of Jim Crow, as a country there was a lot of work that remained. But it was Justice Sonia Sotomayor who was the most vocal in defending not just the civil rights legislation generally, but the principles of racial equality supporting it, taking Justice Scalia’s racism head-on.
It just so happens Shelby v. Holder was argued on the same day a memorial was finally dedicated to Rosa Parks and 91 years after the Supreme Court unanimously upheld the 19th Amendment. In a political climate where conservatives are singularly focused on passing laws that fall most heavily on women of color, low-income families, and minority populations, the women of the court show they understand the stakes. Unfortunately, too, so did Justice Roberts.