Chief Justice John Roberts’s decision in Shelby County v. Holder may be the most politically naïve decision of our era. Rooted in the notion that there simply isn’t enough racism left in the United States to justify a full-functioning Voting Rights Act, Shelby County struck down the law’s preclearance provision—which required new election rules in states with a history of voter suppression to be reviewed by federal officials before they took effect—and left voters to the mercy of a judiciary that is increasingly skeptical of voting rights. Yet, even if the Roberts Court were champions of the franchise, the history of voting rights in the United States reveals that a vigorous judiciary is simply not enough to protect these rights. Politicians determined to keep certain Americans from voting are too creative and too nimble for a judiciary that, by its very nature, must take months or even years to consider cases. And that’s exactly what happened for decades in the South before the passage of the Voting Rights Act.
The Jim Crow South was largely a collection of one-party states—between 1916 and 1944, for example, the Republican presidential candidate won more than 5 percent of the vote in South Carolina just one time. Thus, the winner of a Democratic primary in the South was virtually guaranteed election, and general elections were largely formalities. For this reason, segregationists could exclude African Americans from the franchise entirely by preventing them from voting in Democratic Party primaries.
In 1923, one state tried to do just that by enacting a law providing that “in no event shall a negro be eligible to participate in a Democratic party primary election held in the State of Texas”—though this first attempt to suppress the black vote did not end well for Texas. The Supreme Court struck down the law in a unanimous opinion proclaiming that “it seems to us hard to imagine a more direct and obvious infringement of the Fourteenth [Amendment].”