During last week’s oral argument in Shelby County v. Holder – the challenge to Section 5 of the Voting Rights Act – Chief Justice Roberts questioned the Solicitor General concerning the rationality of the VRA’s coverage formula (Section 4(b)) by comparing non-covered Massachusetts with Mississippi, which remains subject to federal preclearance based on registration and voting data from 1964. As the Chief Justice pointed out (page 32 of the transcript), Massachusetts has the “worst ratio of white voter turnout to African American voter turnout” while Mississippi “has the best.” Massachusetts likewise “has the greatest disparity in registration between white and African American” while Mississippi is third best in the nation, “where again the African American registration rate is higher than the white registration rate.” The Chief Justice’s remarks apparently angered the Massachusetts Secretary of State. According to a Politico story, Secretary William Galvin found it “just disturbing that the chief justice of the United States would spew this kind of misinformation” and that the “2010 numbers don’t support what Roberts is saying.” Galvin continued: “He’s wrong, and in fact what’s truly disturbing is not just the doctrinaire way he presented by the assertion, but when we went searching for an data that could substantiate what he was saying, the only thing we could find was a census survey pulled from 2010 … which speaks of noncitizen blacks … . We reached out to academics at many institutions … and they could find no record either, they were puzzled by [Roberts’s] reference.” But it’s Secretary Galvin who has his facts wrong—a mistake he could have avoided simply by reviewing the lower court decision that the Supreme Court is considering.
In his dissenting opinion, D.C. Circuit Judge Stephen Williams examined the voter registration and voting statistics from the 2004 presidential election – not the 2010 mid-term elections—because it was the last national election before Congress reenacted Section 5 in 2006. The question the Supreme Court is considering—which seems to be lost on Galvin – is whether Congress acted appropriately in retaining the same coverage formula that has been in place since 1975 despite significant changes in the country. To answer that question, the Court must of course look at the statistics that were in the 2006 legislative record. And those statistics, which are publicly available and come directly from the Census Bureau, fully vindicate the Chief Justice’s statement.
Other media reports have criticized the Roberts’s reliance on these statistics by pointing to the margin of error in the Census data. But the margin of error works in both directions. While some may want to seize on the margin of error to suggest that the differences between Massachusetts and Mississippi aren’t as pronounced as the data suggests, it’s equally possible that the differences are even starker. In any event, the margin of error cannot wipe away the significant differences between these two states. Painting Massachusetts in the most favorable light within the margin of error, it would still have a white/black registration disparity of 13.2%, and painting Mississippi in the most unfavorable light, it would still have a white/black registration disparity of 3.9%. On the other end of the error-margin spectrum, however, Massachusetts’ disparity is as high as 36% (higher white registration) while Mississippi’s is as low as -11.5% (higher black registration) – a massive 47.5% gulf between the two.