Among the many things that can be gleaned from Tuesday’s Supreme Court decision eviscerating the Voting Rights Act is this: we live in an era of American history which is, if not actually post-racial, then officially post-racism. Race may still exist as a social reality—and so may racism—but no amalgamation of facts, studies, or disparities is sufficient to the cause of proving that there exists a system which produces inequality. In short: we have overcome whether the data agrees with us or not. As Chief Justice John Roberts wrote in the majority opinion:
In 1965, the States could be divided into those with a recent history of voting tests and low voter registration and turnout and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.
Americans tend to imagine that the racial history of their nation is a steady line sloping upward; in truth, it looks more like an EKG. In that context, it’s unsurprising that a decision hobbling the Voting Rights Act could come in such close proximity to the first Presidential election in which the percentage of eligible voters who went to the polls was higher among blacks than among whites. Peaks in racial progress tend to come in concert with valleys of backlash.
Tuesday’s ruling hinged upon the idea that the V.R.A. applies current legislative power to what is essentially a problem of the past. There’s a curious logic undergirding the decision, one that suggests a kind of judicial engineering if not activism. The Court’s argument that the election and reëlection of an African-American President are evidence that the V.R.A. is no longer needed is roughly akin to arguing that declining crime rates mean we can comfortably strike down laws forbidding robbery. Minority voting turnout and registration rates “approach parity” in these places precisely because the V.R.A. serves as a deterrent to and recourse for voting discrimination. The violent subjugation of black voters in the South has all but vanished, but that overt kind of racism isn’t the best barometer of progress. Simple political interest—not raving negrophobic bigotry—has too often been enough to inspire efforts to diminish black turnout.
Reading the opinion it’s possible to forget that a grand total of three African-Americans senators and two governors have been elected in the past hundred and thirty-six years, only one of them in a Southern state. In arguing that the preclearance section of the V.R.A. was outmoded and based upon aged presumptions about Southern states, the court had to bypass not only history but contemporary reality. As Justice Sotomayor pointed out during oral arguments, Shelby County—the Alabama county that brought the challenge to the Court—had failed preclearance some two hundred and forty times. Given that Section 5 of the V.R.A. allows districts covered by its provisions to move out of coverage by consistently demonstrating that their laws have no discriminatory impact, this decision was something of an end run: places that have consistently failed the litmus tests of discrimination were, in a second, given the status of those where there’s been legitimate progress.