Chief Justice John Roberts, who established his reputation during the Reagan administration with his attacks on the Voting Rights Act, Chief Justice Roberts’ Long War Against the Voting Rights Act, rejected the empirical evidence to assert that discrimination no longer occurs in “covered jurisdictions” in striking down the coverage formula enacted by a near unanimous Congress in Section 4 of the Voting Rights Act of 1965, which had the effect of leaving the U.S. Justice Department preclearance provisions in Section 5 in suspension.
Justice Roberts opinion in Shelby County v. Holder opened the floodgates to new GOP voter suppression efforts in those covered jurisdictions within hours of the decision. After Ruling, States Rush to Enact Voting Laws.
New research demonstrates how Justice Roberts’ opinion was full-o’-crap. The New York Times editorializes, Voting Rights, by the Numbers:
Discrimination against minority voters may have been pervasive in the 1960s when the law was passed, Chief Justice John Roberts Jr. wrote, but “nearly 50 years later, things have changed dramatically.” In this simplistic account, the law was still punishing states and local governments for sins they supposedly stopped committing years ago.
The chief justice’s destructive cure for this was to throw out the formula Congress devised in 1965 that required all or parts of 16 states with long histories of overt racial discrimination in voting, most in the South, to get approval from the federal government for any proposed change to their voting laws. This process, known as preclearance, stopped hundreds of discriminatory new laws from taking effect, and deterred lawmakers from introducing countless more.
But Chief Justice Roberts, writing for a 5-4 majority, invalidated the formula because “today’s statistics tell an entirely different story.”
Well, do they? A comprehensive new study by a historian of the Voting Rights Act provides a fresh trove of empirical evidence to refute that assertion. The study by J. Morgan Kousser, a professor of history and social science at the California Institute of Technology, examines more than 4,100 voting-rights cases, Justice Department inquiries, settlements and changes to laws in response to the threat of lawsuits around the country where the final result favored minority voters.
It found that from 1957 until 2013, more than 90 percent of these legal “events” occurred in jurisdictions that were required to preclear their voting changes. The study also provides evidence that the number of successful voting-rights suits has gone down in recent years, not because there is less discrimination, but because several Supreme Court decisions have made them harder to win.
Mr. Kousser acknowledges that the law’s formula, created without the benefit of years of data, was a “blunt tool” that focused on voter turnout and clearly discriminatory practices like literacy tests. Still, he says, the statistics show that for almost a half century it “succeeded in accurately homing in on the counties where the vast majority of violations would take place.”
Members of Congress had seen some of this data in 2006 when, by a near-unanimous vote, they reauthorized the Voting Rights Act for 25 years. In fact, the legislative record contained more than 15,000 pages of evidence documenting the continuation of ever-evolving racially discriminatory voting practices, particularly in the areas covered by the preclearance requirement.
But the Roberts opinion showed no interest in actual data. Nor did it seem to matter that the law was already adapting to current conditions: Every one of the more than 200 jurisdictions that asked to be removed from the preclearance list was successful, because each showed it was not discriminating.
Instead, the court said the coverage formula had to be struck down because it failed to target precisely all areas with voting rights violations in the country.
Mr. Kousser’s study does not solve this problem, in part because there is no easy way to compare discrimination in places that are under a federal microscope with those that are not. But the study provides the most wide-ranging empirical evidence yet that Congress was amply justified in finding that voting discrimination remains concentrated in the covered states and regions. In other words, the tactics may have changed, but the story remains largely the same. Voting discrimination no longer takes the form of literacy tests and poll taxes. Instead, it is embodied in voter-ID laws, the closing of polling places in minority neighborhoods, the elimination of early-voting days and hours, and much more.
The Supreme Court suggested that Congress could fix the law by updating the coverage formula to more closely reflect where violations are occurring today — and a bipartisan bill introduced in 2014 and reintroduced this year has done just that. So far it has gone nowhere because most Republicans oppose it. Even if it were to pass, there is no guarantee it would survive before a Supreme Court that is highly skeptical of any race-conscious efforts to reduce discrimination.
Meanwhile, the Justice Department and private groups are doing what they can to combat the flood of new discriminatory laws with the surviving provisions of the Voting Rights Act. But without preclearance requirements for places with the worst records on racial discrimination, they will always be a few steps behind.
The 50th anniversary of the signing of the Voting Rights Act of 1965 is coming up on Thursday, August 6. Democrats, civil rights organizations and voting rights organizations should begin a concerted public campaign to pressure Congress into voting on the Sensenbrenner-Conyers bill, known as the Voting Rights Amendment Act, which updates the Section 4 formula by making it apply to all states and jurisdictions with voting violations in the past 15 years, and by creating uniform transparency requirements to keep communities informed about voting changes, before Congress leaves for its August recess. It’s time to restore and to renew the Voting Rights Act in time for its 50th anniversary.
Contact your member of Congress and Senators to demand action on the Voting Rights Amendment Act, and keep after them regularly until Congress votes on this bill.