SCOTUS delivered an important decision today, basically striking down Section 4 of the Voting Rights Act. A little history:
When the Voting Rights Act passed in 1965, almost no African-Americans were registered to vote in the Deep South due to brutal repression and sickening legal chicanery. Civil rights litigators and the Department of Justice were doing their best to help. They filed lawsuit after lawsuit to make it possible for blacks to register. But every time a court deemed one discriminatory practice illegal, local officials would switch to another. Literacy tests, poll taxes, burdensome registration requirements—these techniques were all used to prevent African-Americans from voting. Southern voting registrars would even resign from their positions as soon as a lawsuit was on the cusp of succeeding, thereby sending the case back to square one. The Voting Rights Act aimed to change all of this.
Section 5 was the most important and imaginative provision in the law. It required certain states and jurisdictions, mostly in the South, to ask the federal government’s permission before making any change—no matter how small—in the way they run elections. Until a rule was “precleared,” it could not go into effect. This unusual provision solved the central problem of voting-rights enforcement during the civil rights era—keeping up with the increasingly creative strategies recalcitrant state and local governments used to disenfranchise voters. Section 5 shifted the burden of inertia, allowing the Department of Justice to get one step ahead of local officials.
In what is becoming a trend for the Roberts Court, the judges declined to strike down the entire VRA. Instead they struck down Section 4, which defines which areas need to preclear their election laws based on voter registrations and restrictions as they existed in 1972. This is an incremental step, building on criticisms the judges leveled at Section 4 four years ago. They warned Congress then that Section 4 was becoming outdated and needed to be replaced. Congress didn’t listen. And while I expect Congress to make a lot of noise, I don’t expect any action. Section 4 and, to a large extent Section 5 are effectively dead.
The reactions from the Left, as you can imagine, are a bit apoplectic. The most common argument is that the VRA has done a good job (African American registration is now comparable to white registration in many VRA-affected areas) so why scrap it now? But to me, that’s the argument for scrapping it. I can see the argument for having passed the VRA in the first place, over-riding states’ rights temporarily because the extraordinary circumstances of institutionalized and unremitting racism. But that was a temporary measure. At some point, we shouldn’t simply assume states are racist monsters because of conditions older than I am. Comparing this to Dred Scott or Plessy is simply ridiculous, especially since most of the VRA remains intact. In fact, this very Court, earlier in the session, threw out Arizona’s proof of citizenship requirement by a 7-2 vote, agreeing that it was over-ridden by federal law. There is nothing whatsoever to stop individuals or the Justice Department from challenging any state law they think is designed to surpress minority voting. I find it very unlikely that states will start playing the legal games they played in the 60’s to surpress the vote.
You can read more from Mataconis and Joyner at Outside the Beltway. The upshot — one I agree with — is that the Court made the correct decision: chip away at the VRA but leave enough intact so that discrimination can not rear its ugly head again.
The most amazing part of SCOTUS watching is the whipsawing of the pundit’s attitudes. When the Roberts Court made the Citizens United decision, all the liberal pundits rent their garments. Then the Obamacare decision came and suddenly the Roberts Court was awesome! Now they chip away at a dubious part of the VRA and they’re worse than the Tanney Court. If the Court overturns Prop 8 or DOMA tomorrow (I expect them to punt), then they’ll be awesome again.
Me? I think it’s been a mixed bag. The Roberts Court has made some critical inroads in Second Amendment Rights and property rights. They’ve made some poor decisions on civil liberties, Obamacare and criminal defense rights. But the thing they’ve mostly done is show restraint: knocking down parts of laws instead of entire volumes of law, deferring to the legislative process when they can and making changes in a manner consistent with judicial history and our Constitution.
That’s not perfect. I think judicial activism is a good thing when our liberty is at stake. But it’s an improvement over the radically activist Courts of the past.