As everyone has surely heard by now, SCOTUS struck down section 4 of the Voting Rights Act this morning, effectively rendering the pre-clearance provision a dead letter until Congress rewrites the section. Which is to say: effectively rendering the pre-clearance provision a dead letter forever.
In response to this, Steve Benen asks a legitimately fair question:
There’s something about the Supreme Court‘s ruling in Shelby that’s bothered me all day. It’s probably unimportant – Jonathan Adler, feel free to jump in and set me straight — but as I read the ruling (pdf) this morning, I was looking for something specific: why the court majority considers Sec. 4 of the Voting Rights Act unconstitutional.
As David Gans points out (later in the post), Roberts and his minions are seemingly ignoring the 15th amendment’s very clear enforcement mechanism – “ The Congress shall have power to enforce this article by appropriate legislation” – by ruling that the 4th section of the VRA diminished the sovereignty of states, and was therefore unconstitutional. But of course Congress does have the power to legislate voting rights in the states, and has since 1870. There is no question about this. So again, what is Roberts’s argument that the 4th section is inconsistent “with the ‘letter and spirit of the Constitution”?
I’ll tell you how: the majority argues that the Section 4 test is irrational. The opinion lays it out clearly:
There is no valid reason to insulate the coverage formula from review merely because it was previously enacted 40 years ago. If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way based on 40-year-old data, when today’s statistics tell an entirely different story. And it would have been irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time. But that is exactly what Congress has done.
Put another way, a majority of the Supreme Court of the United States of America believes that Section 4 was once rationally crafted to achieve permissible ends as defined by the 15th amendment, but since racism is fixed it is no longer necessary and therefore irrational. This is the logic of one of the most important SCOTUS decisions in generations. That racism is fixed.
The mind reels. I mean, we expected this in some form or another, but the mind nevertheless reels. This is that big of a deal. I don’t really have anything pithy to add, or any way to spin this other than to say that I hope history judges John Roberts as cruelly as I suspect it will. But that is cold comfort to anyone who will be denied their (formerly) constitutional right to vote in the world’s oldest republic. It is of no comfort to me now.
