JOHN ROBERTS AND THE SHELBY DELUSION

by AHMED AHMED STAFF

If the 1860s was a period of bloody violence giving way to the end of the slavocracy, the 1870s was a period of bloody violence largely reversing the previous decade’s progress. Humiliated by the North, Southern supporters of slavery channeled their burning grievances into widespread attempts to topple Reconstruction-era governments and recreating pre-Civil War systems of racial hierarchy. As backlash against Reconstruction radicalized, thousands of Southerners terrorized their Black fellow citizens, particularly those exercising their newfound right to vote.

The end of Reconstruction, beyond its immediate impact on the Black residents of Southern states, also set the stage for a century and a half of the republic’s central civil battle: the fight for political equality to fulfill Reconstruction’s promise against the principle of near-absolute state sovereignty over elections.

Central to the 2013 Shelby County v. Holder case was not just a constitutional interpretation of the Tenth Amendment, but the same battle between voting rights and states’ rights defining the latter 19th century. Distraught over minimal racial progress in the American South,

Congress passed the Voting Rights Act (VRA) which, along with banning practices used to discriminate against Black voters, subjected several states and counties to a “preclearance” requirement. Aware of the shortcomings of only using litigation against the new methods of voter discrimination, the Voting Rights Act required legislators to receive authorization from the Department of Justice when changing their electoral systems. Section 4(b) of the bill established the formula adjudicating what jurisdictions were under the requirement’s purview.

Almost 50 years after Congress

CONTINUED ON PAGE 30 attempted to crush the cornerstone of Jim Crow—the denial of voting rights—the Court ruled their method was antiquated and violated the Tenth Amendment. Chief Justice John Roberts authoring the majority opinion, bemoans how “states must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own.” The federal government’s disparate treatment of states was “extraordinary,” “unprecedented,” and an excuse to “punish for the past.” Breaking with Constitutional norms, Roberts quickly clarifies, was justified when the Voting Rights Act was initially signed. The pervasiveness of electoral racial discrimination and the extent to which it was concentrated in particular areas created leeway for differential treatment by the federal government.

That leeway, however, tightened significantly as Southern states considerably progressed in eliminating racial inequalities in elections. As the majority proudly notes, by 2004, “African-American voter turnout exceeded white voter turnout in five of the six States originally covered by §5, with a gap in the sixth State of less than one half of one percent.” Equal treatment of states could be overlooked when Southern states’ conduct was more egregious than those of their Northern and Western compatriots. However, that justification could no longer fly.

It would be wrong, both historiographically and morally, to say the

Court’s decision isn’t meaningfully distinct from the phenomena initially motivating the VRA.

The majority clearly demonstrates their belief that the Voting Rights Act was, once, rational for dismantling the system of racial brutality in the South and specially denounces the “reign of Jim Crow” which “denied African-Americans the most basic freedoms.”

What is accurate, though, is that the court is using a time-honored tradition of valuing an amorphous sense of grievance among states over their residents’ fundamental rights. VRA defenders see the debate as a clean-cut question of whether or not the right to vote should be protected. The majority, however, is more sensitive to claims that preclearance drags the South backward, insisting on reminding us of the racial warfare of before rather than progressing to future racial equality.

“History,” the opinion lectures, “did not end in 1965.”

Ironically, the majority’s insistence that institutional voting discrimination has largely become non-threatening makes the same mistake: casting an easy paradigm onto a complex history. In 1995, for example, the VRA prevented Mississippi from having two voter registration systems: one for federal elections, and another for state elections, finding it would discriminate against minority voters. As Justice Ruth Bader Ginsburg noted in her dissent, “Congress found there were more DOJ objections between 1982 and 2004 (626) than between 1965 and the 1982 reauthorization (490).” Following the Shelby decision, there have been a wave of discriminatory electoral changes in former preclearance areas, a trend the Roberts court is poised to let continue unabated.

These laws, and the wave of bills states passed following Shelby, are not proof the U.S. hasn’t improved since Jim Crow. What it proves, however, is how integral the tools designed to reign it in are decades later. The delusion central to Shelby is that these tools are no longer useful, a belief buoyed by their success. The vision of VRA defenders is not one of eternal vengeance against the South, but progress toward the legal equality Reconstruction promised.