… Writing for the five-man majority in Shelby County, the recently decided Supreme Court case challenging the VRA, Chief Justice John Roberts noted that “times have changed” since 1965. The tests and devices that blocked African-American access to the ballot in 1965 have been forbidden nationwide for over forty-eight years; the levels of registration and voting by African-Americans in southern states are now comparable to, or greater than, those of whites. Moreover, the two southern cities, Philadelphia, Mississippi and Selma, Alabama, where the most publicized misconduct by white police officials occurred in 1964 and 1965, now have African-American mayors. In view of the changes that have occurred in the South, the majority concluded that the current enforcement of the preclearance requirement against the few states identified in the statute violates an unwritten rule requiring Congress to treat all of the states as equal sovereigns. The Court’s heavy reliance on the importance of a “fundamental principle of equal sovereignty among the States,” while supported by language in an earlier opinion by Chief Justice Roberts, ignored the fact that 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.
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. As Justice Ginsburg pointed out in her largely unanswered dissent in the Shelby County case, the Court in its opinion upholding the original 1965 Voting Rights Act
held, in no uncertain terms, that the principle [of equal sovereignty] “applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.”
Except for his reference to the fact that the first century of congressional enforcement of the Fifteenth Amendment’s guarantee of the right to vote “can only be regarded as a failure,” Chief Justice Roberts’s opinion gives the reader the impression that the Voting Rights Act was Congress’s response to a specific problem that developed in the 1890s. Parroting Chief Justice Earl Warren’s opinion in South Carolina v. Katzenbach, Chief Justice Roberts wrote:
In the 1890s, Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia began to enact literacy tests for voter registration and to employ other methods designed to prevent African-Americans from voting.
There is no reference in the opinion to anything that happened before 1890. By selecting two examples—Philadelphia, Mississippi and Selma, Alabama, where black mayors now preside—to illustrate the magnitude of the change that has taken place since 1965, however, Roberts ironically emphasizes the fact that the “tests or devices” that were used in the statute’s coverage formula were not the principal means by which white supremacists prevented blacks from voting.