I recall the discussions over the Voting Rights Act back in 1965 pretty vividly. On the one hand it was clearly an assault on federalism and our system of sovereign states is one of the factors that enables a country of our size and astonishing diversity to function. One size does not fit all; what is seen as reasonable, just, or necessary in one state might not be seen the same way in another and, in fact, might not be reasonable, just, or necessary in another.
On the other hand the Southern states had successfully thwarted and perverted the democratic process with a thicket of taxes, regulations, and other measures that effectively disenfrancised a quarter of their citizens. Under the circumstances, those of us who supported the full power of the Voting Rights Act accepted it as a necessary evil, the only way to right a wrong that wasn’t just historical but ongoing.
And it was clear that it was to be temporary.
After the Supreme Court declared Section Four of the Voting Rights Act unconstitutional yesterday by a vote of 5-4, there has been an anguished lament of the return of segregation, first by Justice Ruth Bader Ginsburg from the bench:
In a scathing dissenting opinion, Supreme Court Justice Ruth Bader Ginsburg accused her conservative counterparts of displaying “hubris” in striking down a key portion of the landmark Voting Rights Act of 1965.
Ginsburg wrote that the five justices who voted to overturn Section 4 of the law were displaying judicial activism and a loss of contact with reality in saying that the “pre-clearance” provisions of the law don’t apply today.
“Leaping to resolve Shelby County’s facial challenge without considering whether application of the VRA to Shelby County is constitutional, or even addressing the VRA’s severability provision, the Court’s opinion can hardly be described as an exemplar of restrained and moderate decisionmaking,” Ginsburg wrote.
“Quite the opposite. Hubris is a fit word for today’s demolition of the VRA.”
and then in the editorial and opinion pages of major media outlets and the blogosphere. Consider the reaction from the editors of The Washington Post:
LED BY Chief Justice John G. Roberts Jr., the Supreme Court on Tuesday gutted a key element of the Voting Rights Act, one of the most potent anti-discrimination tools Congress ever devised. It was an audacious ruling devoid of the restraint the chief justice and his colleagues in the majority should have shown.
Among other things, the act obliges certain states and localities to “pre-clear” any change in electoral policy or procedure with either the Justice Department or a federal court. In its 5 to 4 decision, the court didn’t squash the notion that such a powerful measure could be acceptable. Instead, the majority held that the formula Congress used to determine which jurisdictions to subject to pre-clearance — mostly in the South, with its grotesque history of racial discrimination — was an artifact from the 1960s with “no logical relation to the present day.”
Contrast that with the remarks from the editors of the Wall Street Journal:
The U.S. has a long and difficult history with racial discrimination, but on Tuesday the Supreme Court marked a milestone worth celebrating when it ruled that a section of the 1965 Voting Rights Act has outlived its usefulness. The political left is reacting as if this means a return to Jim Crow, but the ruling is best understood as a sign of the racial progress that progressives claim to believe in.
In a 5-4 decision, the Justices said that the law’s Section 4b coverage formula—which requires that nine states and parts of seven others get federal preclearance of changes to their voting laws—can no longer be constitutionally justified.
“Our country has changed, and while any racial discrimination in voting is too much,” Chief Justice John Roberts wrote for the majority in Shelby County, Ala. v. Holder, “Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.” The Constitution requires that the federal government treat states equally, and the Voting Rights Act’s selective restrictions were only warranted under extraordinary circumstances. “Current burdens,” Justice Roberts wrote, quoting a previous case, must be justified by “current needs.”
I don’t know what the right of the decision is from a legal standpoint but, as I noted above, I do remember that the “preclearance” requirement was intended to be temporary. When did temporary become forever? Under what circumstances would it be proper for the Department of Justice to end its preclearance of changes to voting laws in Atlanta?
Why isn’t there more oversight in Illinois and, in particular, in Chicago, by many reckonings the most segregated city in the nation? In this state wards and Congressional districts are mercilessly gerrymandered to concentrate the power of ethnic and racial minorities in specific areas. How is this a tolerated state of affairs?