Here’s a safe prediction for 2013: few people will pine for the Presidential campaign of 2012. Even Barack Obama’s most ardent supporters acknowledge that his victory provided little of the euphoria of four years ago. Not many Republicans have longed to hear from Mitt Romney since his swift journey to political oblivion. Anyone miss the barrage of Super PAC ads? (Those, alas, will probably be back in four years.) The pseudo-candidacy of Donald Trump? (Ditto.) But in last year’s spirited competition for the nadir of our political life the lowest blow may have been the Republicans’ systematic attempts to disenfranchise Democrats.
To review: after the 2010 midterm elections, nineteen states passed laws that put up barriers to voting, including new photo-I.D. and proof-of-citizenship requirements, and restrictions on early and absentee voting. In most of those states, Republicans controlled the governorship and the legislature. The purported justification for the changes was to limit in-person voter fraud, but that claim was fraudulent itself, since voter fraud is essentially nonexistent. Mike Turzai, the Republican leader of the Pennsylvania House of Representatives, revealed the true intent behind most of the laws last June, when, after the House passed such a measure, he boasted, in a rare moment of candor, “Voter I.D., which is going to allow Governor Romney to win the state of Pennsylvania: Done.” Turzai’s prediction was wrong, but that doesn’t mean that the Pennsylvania law and others like it weren’t pernicious. Obama won in Florida, too, but a recent study by Theodore Allen, an associate professor at Ohio State University, found that, in central Florida alone, long lines, exacerbated by a law that reduced the number of days for early voting, discouraged about fifty thousand people, most of them Democrats, from casting ballots.
It is against this backdrop that, next month, the Supreme Court will take up a challenge to the Voting Rights Act of 1965, the most effective law of its kind in the history of the United States. A century after the Civil War, the act, in abolishing many forms of discrimination employed by the Southern states, such as poll taxes and literacy tests, finally turned the legal right for African-Americans in those states to vote into an actual right to vote. Bipartisan congressional majorities have reauthorized the law four times, most recently in 2006. (It passed the House overwhelmingly and the Senate unanimously, and was signed into law by George W. Bush.) The question now is whether the Supreme Court will strike down the Voting Rights Act as a violation of states’ rights.
The case under review, Shelby County, Alabama v. Holder, represents an attack on what has become the most important part of the law, known as Section Five. Section Five applies to most counties in nine Southern states and a handful of counties in the rest of the country, all of which have histories of discriminatory voting practices. The law says that these places must receive prior approval, known as “pre-clearance,” from the Department of Justice or from a federal court before they can make any change in their electoral rules, regarding everything from the drawing of district lines to the location of polling places. The case will determine whether Shelby County, or any other county or state, still has to comply with the pre-clearance requirement.
In the months before Election Day last year, courts across the nation played an admirable role in dismantling the most excessive of the new voting laws. A court in Pennsylvania curtailed Turzai’s law. The Department of Justice and the federal courts used Section Five to block initiatives in Florida, South Carolina, and Texas. Had the courts failed to take such action, according to the Brennan Center for Justice, as many as five million votes might have been lost, which was, as it happens, almost exactly Obama’s popular-vote margin over Romney. It is nothing short of perverse—or, perhaps, predictable—that the Supreme Court has chosen this moment to consider undoing any mechanism that helped to defeat voter suppression.
The Roberts Court, and especially the Chief Justice, has shown a marked animosity toward the Voting Rights Act. The gist of John Roberts’s complaint about the law is that 1965 was a long time ago, and, as he wrote in a 2009 opinion, “things have changed in the South.” In the oral argument of that case, he tossed a series of barbed questions at the lawyers defending the law, all aimed at proving that the Voting Rights Act represented a kind of legal smallpox vaccine—a cure for a disease that no longer exists. As the Chief Justice asked at one point, “Is it your position that today Southerners are more likely to discriminate than Northerners?”
Yet the events leading up to the 2012 election show that the disease of voter suppression has not been cured; rather, it has moved on and mutated. Last year, Judge David Tatel’s opinion in Shelby County v. Holder, for the Court of Appeals for the D.C. Circuit, ratified the congressional judgment that Section Five remains an important bulwark for protecting the right to vote. Tatel found that the statute, far from being obsolete, “continues to single out the jurisdictions in which discrimination is concentrated.”
In one significant respect, though, the act itself has come to serve as a kind of road map for new forms of discrimination. It established a principle that voting-district lines must be drawn so that African-American politicians have some chance of winning federal and state office. But, in the South in recent years, the Republican Party, which is dominant and, for the most part, white, has benefitted from increasing concentrations of black voters in just a handful of districts. African-American candidates stand to win in those districts but have little chance of building the cross-racial coalitions they need in order to exercise real statewide power. The motives today are more political than strictly racial, as they were before 1965, but the result is similar: the political ghettoization of African-Americans.
This illustrates the paradox of contemporary voting rights. In a way, Chief Justice Roberts has a point; the South is no longer all that different from the rest of the country. But that’s not so much because the South is now better—the open racism of the years before 1965 is gone—as because the rest of the country is now worse. It would be a sad irony if the Supreme Court struck down the Voting Rights Act because it regulates too much in too many places, when the truth is that it regulates too little in too few.