Shelby County v. Holder, the Voting Rights Act case the Supreme Court will hear Wednesday, is a peculiar case. Its oddity is this: no one on either side contests that Congress has the power to enact a provision like § 5, the provision at issue here. And no one on either side questions that § 5 does what it was designed to do: keep the ballot box and the political process open to formerly excluded minority voters. The Act, in other words, isn’t broken. Nonetheless, argue the plaintiffs, this key provision must be scrapped. To understand why, consider this sentence from the Petitioners’ Brief filed on behalf of Shelby County, Alabama: “determining whether the formula is rational in practice is not a substitute for testing it in theory.” “The formula” is the heart of § 5, the so-called “preclearance” provision of the Act. As devised by Congress in 1965, the Act imposes a special requirement on states or parts of states that met two conditions during the 1964 election cycle. First, those jurisdictions employed a “test or device” for voting that had been shown to lead to racial exclusion from the vote; and, second, less than 50 percent of the eligible voters actually voted that year.
Those places–called “covered jurisdictions”–are required to obtain pre-approval from the federal government before changing their election laws or procedures. They can seek approval from the Justice Department or from a federal District Court in Washington. And if a state, or a county within a state, can show that they have stopped discriminating against minority voters for a ten-year period, they can get out from under the coverage altogether.
No one questions that the Voting Rights Act has been one of the most successful statutes in American history. It revolutionized Southern politics, permitting black Southerners to vote, influence elections, and run for office in numbers that would have seemed impossible only a few years before its passage.
So much for practice; now for the theory. The theoretical sin of § 5 is that it treats some states–those with the worst history of racial exclusion from the vote–differently than others. Justice Anthony M. Kennedy summed up the objection in 2009 during oral argument in an earlier case, Northwest Austin Municipal Utility District v. Holder: “the Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereignty of Alabama, is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments than the other.”
The correct answers to this question are, respectively,”yes,” and “what’s your point?” The states and parts of states covered by § 5 are “trusted” less than others because Congress has repeatedly found them to be the worst offenders in the historical crime of racial vote-rigging. And neither those states–nor any other state in the Union–has any kind of “sovereign dignity” that needs the Court’s protection against infringement by their own voters.
Opponents of § 5 suggest that it is a sort of historical oddity, like great-grandpa’s CSA belt buckle, of no relevance to today’s “post-racial” world. Shelby County argues that official racism is dead, buried, forgotten: “There is no evidence in the legislative record suggesting that the racial animus of the 1960s in covered jurisdictions has been hibernating for two generations.”
But that’s the second oddity. The people who actually run the political system overwhelmingly disagree. The Act has been up for renewal in 1970, 1975, 1982, and 2006. On each occasion, members of both Houses have opposed renewal; on each occasion, Congress has held extensive hearings into current conditions in covered jurisdictions–and voted to keep § 5. In 1970 and 1975, Congress adjusted the formula for a “covered jurisdiction” to make sure it captured those places where racism persisted. In 2006,when Republicans controlled both Houses of Congress, the vote to renew was 390-33 in the House and 98-0 in the Senate. George W. Bush signed the extension with a flourish, inviting Rosa Parks and members of the King family to be present.