Have We Moved Beyond Racism?

By Andrew Costello

“The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements” (Supreme Court, 2013, 6). These words encapsulate the methodology of the Supreme Court’s decision to strike down key components, principally Section 4, of the Voting Rights Act of 1965 (VRA). Section 4 of the VRA set up both special jurisdictions for federal overview and the principal formula for determining said special jurisdictions among states according to where there has been a history of voting discrimination. Furthermore, Section 5, the main target of the Supreme Court’s decision, dictates that those special jurisdictions mentioned in the fourth section were required to have Federal preclearance when implementing any “change affecting voting” (DOJ, 2013). The changes mentioned in the decision refer to a variety of legislative tactics used to disenfranchise voters; for example, among practices that previously required clearance are gerrymandering, voter ID laws, and literacy tests all of which are used to specifically target minority voters.

Is the decision in Shelby Country v. Holder to strike down key provisions of the VRA truly necessary constitutionally, or even appropriate for the times in which we live? Throughout the explanation of his decision, Roberts emphasizes that “history did not end in 1965,” (Supreme Court, 2013, 24) espousing the idea that states should not be penalized for their past actions. “In assessing the ‘current need’ for a preclearance system that treats States differently” says Roberts, “history cannot be ignored” (Supreme Court, 2013, 24). The history, to which he is referring, is the fact that the situation for minority voters in states within the jurisdictions has greatly improved due to the VRA. Therefore, to Justice Roberts, the VRA is no longer necessary, but rather a blight on the “fundamental principle sovereignty” held among states (Supreme Court, 2013, 14). This would be a compelling argument, if it rested on facts and reason, two essential attributes in which Justice Roberts’ argument is completely lacking. Judge Richard A. Posner of the 7^th Circuit of Appeals in his review of Shelby noted that “there is no such principle;” furthermore, “apart from the spurious principle of equal sovereignty, all that the majority had on which to base its decision was tenderness for ‘states rights’” (Posner, 2013). According to Posner, Roberts and his conservative colleagues have made a figment of their imaginations the foundation of the debasement of the most important civil rights legislation ever.

With the principle idea of Roberts attack on the VRA discredited, the only thing left to ponder is if Roberts was actually correct in his assertion that the VRA is no longer needed, that racism is no longer an issue.  Justice Ginsburg feels that it is, expressing her bafflement the VRA’s gutting by saying, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet” (Supreme Court, 2013, 64). Indeed, hours after the VRA was struck down, Texas enacted a harsh voter ID law. Thus, according to the evidence presented by facts and reason, racism is still alive and well in the United States, and still a problem in the special jurisdictions identified by the VRA. After the court’s decision, it will be interesting to see if state governments will make use of their newfound freedom. Unfortunately, I am sure that the Supreme Court will supply no guidance or aid in support of  “the perpetuation of racial entitlements” (Davidson, 2013) as Justice Scalia has so fondly called the rights protected by the now defunct VRA.

Bibliography

Davidson, Amy. "In Voting Rights, Scalia Sees a “Racial Entitlement”." The New Yorker. The New Yorker, 28 Feb. 2013. Web. 15 Sept. 2013.

"History of Federal Voting Rights Law." Civil Rights Division Home Page. The United States Department of Justice, n.d. Web. 15 Sept. 2013.

Posner, Richard A. "Entry 16: The Voting Rights Act Ruling Is about the Conservative Imagination." Slate Magazine. Slate Magazine, 26 June 2013. Web. 15 Sept. 2013.

"Supreme Court Decision in Shelby County v. Holder." Supreme Court Decision in Shelby County v. Holder. Supreme Court of the United States, 25 June 2013. Web. 15 Sept. 2013.