This morning, the Supreme Court handed down the first of three decisions I have been awaiting for most of the term. This first one, Shelby County v. Holder, is a case concerning the provision of the Voting Rights Act of 1965 (section 4(b)) that identifies certain jurisdictions that must seek "preclearance" from the Justice Department (or the courts) before implementing any changes they make to the voting structure, in order to ensure that the proposed changes are not racially discriminatory in purpose or effect.
(The other two cases I am following concern marriage equality; those opinions will be handed down tomorrow.)
The Voting Rights Act bans racial discrimination in voting and elections, nationwide. However, in 1965, Congress recognized that there were some jurisdictions that acted so perniciously to prevent minorities, especially blacks, from voting that special attention was needed to prevent those jurisdictions from enacting changes to their voting laws that evaded the more general protections that the VRA provided. In those jurisdictions, all changes were to be submitted to the Justice Department for review; if the Attorney General determined that the changes were discriminatory in purpose or effect, he could block the changes. In order to implement a blocked change, a jurisdiction would have to prove in court that the change was not discriminatory.
Since the original enactment, which was set to expire in five years, Congress has repeatedly renewed and extended the Act, and on several occasions has expanded the criteria for the preclearance requirement. Each time, Congress has gathered extensive evidence of continuing efforts in covered jurisdictions to enact discriminatory policies. And there is no more compelling evidence that preclearance continues to be needed--and, frankly, to be expanded--than that the Justice Department has blocked nearly 2,000 proposed changes to voting, districting, and elections-related laws in the 48 years since the original VRA. Lest you think that number is front-loaded, with rejected changes being relatively rare--think again. The pace of rejected changes has increased, not slowed.
And the forces of racial discrimination are again on the move. It is no secret that Republicans need desperately to suppress the vote of minorities in order to ensure electoral success. That is the impetus behind voter ID laws. There is no epidemic of actual voter fraud affecting elections, but Republicans know that the poorer you are and the darker your skin, the more likely it is that you don't have a state-issued ID and won't waste money getting one. That is also the impetus behind extreme gerrymandering at the last cycle--which resulted in the GOP obtaining a 33-seat majority in the House of Representatives even though votes for Democratic candidates exceeded votes for Republican candidates by more than 1 million votes, some 1% of those cast. GOP legislatures have been busy cutting back early voting and weekend voting hours in the hope that making it harder to vote will keep those for whom it is harder to exercise the franchise to begin with--poorer, darker-skinned people who have less reliable transportation, less flexibility in work schedules, and other impediments--will simply not vote.
In the context of all of that, I am profoundly disgusted by the Supreme Court's action today. Because by some metrics the VRA, and specifically the portion of the act that requires preclearance in some jurisdictions, has been so effective at preventing discrimination, the Supreme Court says now that preclearance must be set aside, at least until Congress can devise a new test to determine whether preclearance should apply.
And we all know that Congress is wholly dysfunctional at present precisely because the House is out of step with the expressed will of the people, due to the actions of a party that draws its power from the very acts the VRA was designed to prevent.
Within a few years, this decision will expose the situation as it is: That the pro-discrimination forces have had their thumbs on the scale all along, and that only the equalizing force of preclearance stood as an effective tool to produce a just result. As the Supreme Court said more than a century ago in Yick Wo v. Hopkins, the vote is "preservative of all rights." In a nation governed increasingly by those motivated by self-interest, fraud, graft, and greed, we cannot afford to set aside the protections that the vote provides. This means nothing less than ensuring that government of the people, by the people, for the people, shall not perish from the earth.