Chief Justice John Roberts’ opinion on the Voting Rights Act takes away one of the most important tools for ensuring minority rights that Congress has ever created. Yet the opinion sounds respectful and modest. This is the genius of John Roberts. He makes big steps to the right look like small ones. He is the master of conservative stealth, a chief justice who eschews flair and drama. In that sense, he’s the anti-Scalia—no flame throwing, thank you. Just getting the job done.
Eric, you’ve explained better than I can why Tuesday’s ruling, by the usual dreary 5–4 ideological split, is the opposite of judicial modesty—a term that generally means courts deferring to elected legislatures. The five conservatives struck down a law reauthorized by Congress just seven years ago because they don’t think the evidence for it was strong enough. Roberts reminds Congress: We warned you. True enough: In 2009, the court suggested that it was uncomfortable with Section 5, the part of the Voting Rights Act that requires nine states in the South (and a few other scattered towns and cities) to go to court or the Department of Justice to make any change to an election law. But why does Congress have to jump when the court says jump? With his 2009 opinion and now this one, Roberts set a trap for Congress. Instead of striking down Section 5 itself, in one mighty and attention-grabbing blow, the conservative majority is saying: Hey, this is on you, lawmakers. Just come up with a better way to justify this law and continue to use it to make elections fairer. Please. Really. Go right ahead.
But it’s laughable to think this divided Congress would take on that task. And of course Roberts knows that. For all practical purposes, Tuesday’s decision means the end of Section 5. That means unfair voting rules just got much harder to stop. Exhibit A: the voter ID law in Texas, blocked by Section 5, which will now “take effect immediately,” the state attorney general says. Exhibit B: the gerrymandering that created the 23rd Congressional District in Texas, which I wrote lots about here. It’s a part of Texas with lots of Hispanics. They tend to vote for Democrats. But in 1992, the Republican-controlled legislature redrew the 23rd Congressional District to include more Republican voters. They elected a Republican to Congress. In 2003, they moved 100,000 Latinos out of the district to keep the seat Republican. In 2006, the Supreme Court ruled that the district violated the Voting Rights Act (not the part at issue in today’s case—another part called Section 2, which is alive and well). Texas went back to the drawing board. With new lines that included more Democrats, a Democrat won the next congressional election. But after the 2010 census, the Republicans in control of the state tried again. This time, they were clever. In the words of the court that heard a challenge to the new lines, the mapmakers “consciously replaced many of the district’s active Hispanic voters with low-turnout Hispanic voters in an effort to strengthen the voting power of CD 23’s Anglo citizens. In other words, they sought to reduce Hispanic voters’ ability to elect without making it look like anything in the CD 23 had changed.” Lo and behold, the new district elected a Republican.
Because of Section 5 and the requirement that states get changes like this preapproved, the court that rejected the new lines for Texas’ 23rd Congressional District last August did so quickly, before the Republican holding office could wield the power of incumbency to consolidate his power. But without Sections 4 and 5, as civil rights lawyer Nina Perales put it to me, “The first election after redistricting goes to the discriminators.”
Roberts said that none of this matters, even though these kinds of redistricting problems were very much part of the record Congress reviewed before it reauthorized the Voting Rights Act in 2006. It doesn’t matter, Roberts said, because such gerrymandering isn’t the kind of “flagrant” or “rampant” discrimination that infected the South when the Voting Rights Act was first passed. “History did not end in 1965,” Roberts writes. And: “Nearly 50 years later, things have changed dramatically.” And: “The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years.” All true. And doesn’t it start to sound so deceptively reasonable? After all, the new South is not the same as the old South.
But just because the methods of diminishing minority voting power have changed doesn’t mean the problem has evaporated. And in fact, Congress had evidence showing that racially polarized voting persists in the regions covered by Section 5 more than in the rest of the country. Why does discrimination have to be “flagrant” and “rampant” for Congress to address it? Yes, Section 5 wasn’t perfect. Roberts is surely correct that it wouldn’t be written the same way from scratch today. But it is the job of Congress, not the court, to fashion its weapons for fighting discrimination.
The worst aspect of the loss of Section 5 won’t be the widely publicized laws like voter ID requirements, which depress minority turnout. The worst part will be the little stuff—the changes to local school board and city council elections that are too small to make headlines. Like this fight over how to elect the school board in Beaumont, Texas, waged along racial lines. Without Section 5, the Brennan Center for Justice warns in a recent report laying out what’s at stake, “the public might not even know about such changes sufficiently in advance of an election to seek relief from the courts.” Or if the public does know, it will all seem technical and small-bore. And any problems will seem to be Congress’ fault, anyway. John Roberts is very good at getting what conservatives want while also getting the court off the hook.