John Paul Stevens: The Court & the Right to Vote: A Dissent:
The Supreme Court, on June 25, 2013, issued its decision in Shelby County v. Holder, invalidating the portion of the 2006 enactment that retained the formula used in the 1965 act to determine which states and political subdivisions must obtain the approval of the Department of Justice, or the US District Court in the District of Columbia, before changes in their election laws may become effective. That formula imposed a “preclearance” requirement on states that had maintained a “test or device” as a prerequisite to voting on November 1, 1964, and had less than a 50 percent voter registration or turnout in the 1964 presidential election…. State election laws that were enacted after 1877 were disastrous for black citizens. Whereas 130,000 blacks had been registered to vote in Louisiana in 1896, only 1,342 were registered to vote in 1904. In Alabama only 2 percent of eligible black adults were registered, and they risked serious reprisals if they attempted to exercise their right to vote. Black disenfranchisement, like segregation, was nearly complete throughout the South for well over sixty years. It was enforced not only by discriminatory laws, but also by official and unofficial uses of violence.
Writing for the five-man majority in Shelby County, the recently decided Supreme Court case challenging the VRA, Chief Justice John Roberts noted that “times have changed” since 1965. The tests and devices that blocked African-American access to the ballot in 1965 have been forbidden nationwide for over forty-eight years; the levels of registration and voting by African-Americans in southern states are now comparable to, or greater than, those of whites. Moreover, the two southern cities, Philadelphia, Mississippi and Selma, Alabama, where the most publicized misconduct by white police officials occurred in 1964 and 1965, now have African-American mayors. In view of the changes that have occurred in the South, the majority concluded that the current enforcement of the preclearance requirement against the few states identified in the statute violates an unwritten rule requiring Congress to treat all of the states as equal sovereigns.
The Court’s heavy reliance on the importance of a “fundamental principle of equal sovereignty among the States… ignored the fact that Article I, Section 2 of the Constitution created a serious inequality among the states. That clause counted “three fifths” of a state’s slaves for the purpose of measuring the size of its congressional delegation… increased the power of the southern states by counting three fifths of their slaves even though those slaves were not allowed to vote…. The fact that this “slave bonus” created a basic inequality between the slave states and the free states has often been overlooked, as has its far-reaching impact. In 1800, for example, that bonus determined the outcome of the presidential election… enhanced the power of the southern states in Congress throughout the period prior to the Civil War….
After reconstruction ended, however, the terrorist tactics of the Ku Klux Klan and other groups devoted to the cause of white supremacy effectively prevented any significant voting at all by African-Americans, thus replacing a pre-war three-fifths bonus with a post-Reconstruction bonus of 100 percent of the nonvoting African-Americans. Thus, for almost a century—until the VRA was enacted during President Johnson’s administration—the southern states’ representation in Congress was significantly larger than it should have been. Both the underrepresentation of blacks and the overrepresentation of white supremacists in the South during that period contradict the notion that the “fundamental principle of equal sovereignty among the States” is a part of our unwritten Constitution. As Justice Ginsburg pointed out in her largely unanswered dissent in the Shelby County case, the Court in its opinion upholding the original 1965 Voting Rights Act
held, in no uncertain terms, that the principle [of equal sovereignty] “applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.”
Except for his reference to the fact that the first century of congressional enforcement of the Fifteenth Amendment’s guarantee of the right to vote “can only be regarded as a failure,” Chief Justice Roberts’s opinion gives the reader the impression that the Voting Rights Act was Congress’s response to a specific problem that developed in the 1890s…. There is no reference in the opinion to anything that happened before 1890. By selecting two examples—Philadelphia, Mississippi and Selma, Alabama, where black mayors now preside—to illustrate the magnitude of the change that has taken place since 1965, however, Roberts ironically emphasizes the fact that the “tests or devices” that were used in the statute’s coverage formula were not the principal means by which white supremacists prevented blacks from voting.
The contrast between Roberts’s recent opinion and Justice Abe Fortas’s opinion in United States v. Price (1966), the case arising out of the Mississippi incident, is striking. While the Chief Justice’s opinion notes that “three men were murdered while working in the area to register African-American voters,” Justice Fortas explained that the murders occurred after the three men had been taken into custody and police officers had taken them to a rendezvous with fifteen conspirators to “punish” them….
The several congressional decisions to preserve the preclearance requirement—including its 2006 decision—were preceded by thorough evidentiary hearings that have consistently disclosed more voting violations in those states than in other parts of the country. Those decisions have had the support of strong majority votes by members of both major political parties. Not only is Congress better able to evaluate the issue than the Court, but it is also the branch of government designated by the Fifteenth Amendment to make decisions of this kind.
In her eloquent thirty-seven-page dissent, Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, described the extensive deliberations in Congress over the preclearance requirement, the precedents holding that the Court has a duty to respect Congress’s decisions, and the reasons why the preclearance remedy should be preserved. Indeed, she captured the majority’s principal error concisely and clearly when she explained that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” Justice Ginsburg’s conclusion sums up exactly why the VRA reauthorization should have been upheld:
The record supporting the 2006 reauthorization of the VRA is…extraordinary. It was described by the Chairman of the House Judiciary Committee as “one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 27½ years” he had served in the House…. After exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” …That determination of the body empowered to enforce the Civil War Amendments “by appropriate legislation” merits this Court’s utmost respect. In my judgment, the Court errs egregiously by overriding Congress’s decision….
[Roberts's] unusual method of reaching the merits of a constitutional issue without first addressing the antecedent question of what kind of challenge was before the Court was questionable to me when I first read the Chief Justice’s opinion. It struck me as even more questionable when I read Justice Scalia’s dissent in the Defense of Marriage Act case, which was decided the next day. In his dissent, Justice Scalia contended that the Court erred in its antecedent decision that it had jurisdiction to reach the merits of the constitutional challenge to DOMA. The “diseased root” that Justice Scalia described in the introductory paragraph of his DOMA dissent may well have infected the majority opinion that he joined in the voting rights case.