June 26, 2013 -- "[V]oting discrimination still exists; no one doubts that." So said Chief Justice John Roberts in the opening of his opinion striking down the coverage formula for Section 5 of the Voting Rights Act. Shelby County, Alabama v. Holder
) This formula identified those jurisdictions around the country that employed discriminatory voting devices and suffered from low turnout.
Section 5 requires those jurisdictions, mostly Southern states, to demonstrate that any proposed change to their election practices does not harm minority voters before
the change can take effect. The strength of the law lies chiefly in its shifting of the burden from the victims of discrimination to the perpetrators. So, when, at the eleventh hour, a Mississippi county seeks to change a polling site from an African-American neighborhood to a site next to the office of the White Citizens Council, Section 5 would require County to secure prior approval for the change.
But now, the burden of preventing such a disenfranchising tactic will fall on the victim who must bear the cost (often exceeding $100,000 for experts alone) of litigating the issue.
In reauthorizing the Act in 2006, Congress considered whether racism still plagued our voting practices. They examined 15,000 pages of testimony over the course of ten months of hearings. And the conclusion was, as Chief Justice Roberts said, voting discrimination still exists.
But Roberts seemed to feel that despite that undeniable reality, "things were better." Well, sure, George Wallace isn't blocking schoolhouse doors and Bull Connor isn't fire-hosing Black people waiting in line to vote but must there be a mirroring of 1960s conditions to justify Section 5 protections?
More importantly, since when does the Court engage in its own fact-finding mission and ignore the studied judgment of Congress? This approach represents a radical restructuring of our separation of powers.
In dissent, Justice Ruth Bader Ginsburg poses that very question in challenging the majority for usurping Congress' "obligation to enforce the post-Civil War Amendments 'by appropriate legislation.'" And in assessing the "appropriateness" of the legislation, she first notes how Congress found that significant progress had been made in eliminating first generation barriers resulting in increased numbers of registered minority voters and increased number of minority elected officials.
But Justice Ginsburg explains how "second generation barriers" - "efforts to reduce the impact of minority votes" in contrast to "direct attempts to block access to the ballot" - still impair minority voters. Practices like racial gerrymandering and at-large election systems in lieu of district systems continue to effectively dilute minority votes.
In combating these practices and reauthorizing Section 5, Congress relied on its power to enforce the Fourteenth and Fifteenth Amendments and "[w]hen confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress' power to act is at its height."
Chief Justice Roberts ignored this principle, refusing to accord proper deference to Congress. Essentially, the Chief and the majority answered the wrong question. Substituting their judgment, they resolved that Congress had not chosen the "most wise" path when they should have determined simply whether Congress had "rationally selected means appropriate to a legitimate end." Of course, if they would have answered the first question, we'd still enjoy the benefit of the most effective tool ever devised for preventing racial discrimination.
Robert Rubin is a civil rights lawyer in San Francisco. He was the legal director for the Lawyers' Committee for Civil Rights of the San Francisco Bay Area.