In another 5-4 defeat for the progressive Justices, the Supreme Court today effectively eliminated the pre-clearance requirement of the Voting Rights Act. In an opinion by Chief Justice Roberts in Shelby County v. Holder, the Court ruled that the pre-clearance process used to inhibit states with the worst history of discriminatory voting laws from passing new, subtler versions of those laws is no longer necessary “because of changed conditions.” In other words, racism is dead, haven’t you heard?
There are many reasons why this decision is not just wrong, but profoundly wrong. I will note just two. First, it further cements the position, held by one of our three branches of government (and one chamber of another branch), that the highest goal of the Equal Protection Clause is to achieve “color blindness” by blinding the nation to racism rather than to race and by gutting anti-discrimination laws. George Orwell would feel proud – or, if not proud exactly, vindicated.
Second, the death of this portion of the Voting Rights Act could cripple the voting power of the most progressive segment of the American electorate: African-Americans. (Technically, Congress could fix the unconstitutionality of pre-clearance by altering the formula, but Congress can’t pass a farm bill much less a controversial civil rights provision.) The “changed conditions” mean that we won’t see new poll taxes or malicious “literacy” tests, but we will see voter suppression schemes that will be much more difficult to challenge, because in the most conservative states, civil rights lawyers will lose the pre-clearance tool. Concretely, the most likely result of Shelby County will be new mechanisms that will disproportionately depress the number of Black and Latino voters.
The Shelby County decision is the kind of political-legal attack on democracy that you would expect if the white race was afraid of losing its numerical majority. Oh, right…