Voting Discrimination Still Exists, So How Did Chief Justice Roberts Unravel the VRA?

Facade of Supreme Court building.
United States Supreme Court, Washington, D.C.

Barely a page into his majority opinion in Shelby County v. Holder, Chief Justice John Roberts makes a claim that in any other context would seem unremarkable, even obvious: "Voting discrimination still exists; no one doubts that."

The Chief Justice was at least half right: The overwhelming evidence indicating that "voting discrimination still exists" is beyond debate. What's unclear, however, is whether "no one doubts" such discrimination still exists. In fact, the Chief himself seems to doubt it quite a bit.

In Shelby, the Court's task should have been straightforward. In the past, the Justices had held consistently that "Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting." As a result, all the Court needed to decide was whether the Voting Rights Act’s Section 4 preclearance formula (as applied through Section 5) was a "rational means" of enforcing the guarantees of the Fifteenth Amendment. Indeed, the Court had little difficulty making that determination prior to Shelby County: It upheld the Voting Rights Act's preclearance regime first in South Carolina v. Katzenbach in 1966 and affirmed it again 14 years later in City of Rome v. U.S. Both times, it rejected claims that the VRA exceeded Congress's power to enforce voting rights, going so far as to call the choice to extend the VRA "unassailable" and "plainly a constitutional method of enforcing the Fifteenth Amendment."

So, what changed? How did the Court go from treating the VRA's constitutionality as "plain" and "unassailable" to having, as the majority put it in Shelby, "no choice but to declare [the preclearance provisions] unconstitutional"?

According to Chief Justice Roberts’ opinion, the answer to that question is simple: The facts changed. Congress could have accounted for the shifting face of voter discrimination in its construction of the Section 4 preclearance formula, he wrote, but "instead reenacted a formula based on 40-year-old facts having no logical relation to the present day." He went on to blast "the irrationality of continued reliance on the §4 coverage formula," insisting that "regardless of how to look at the record . . . no one can fairly say that it shows anything approaching the 'pervasive,' 'flagrant,' 'widespread,' and 'rampant' discrimination that faced Congress in 1965." Taking the majority at its word, one would conclude that Congress reauthorized the VRA in 2006 without giving second thought to the15,000 pages of facts, figures, and testimony it amassed as part of the legislative record when considering the law. How could such a sweeping law pass constitutional muster with Congress failing even to consider whether it remained necessary in light of those findings?

But the answer, unsurprisingly, was that Congress did no such thing. Instead, it approved the VRA's reauthorization after determining that the preclearance formula was "necessary to protect racial and language minority citizens located in covered jurisdictions from discrimination." And although it acknowledged, as the Shelby Court did, that there had been significant improvements in ballot access since the law's initial passage, Congress also found that "if not for [Sections 4 and 5] of the VRA the gains made by minorities would not have been made," and "the gains achieved by minority voters over the last 40 years are vulnerable without the protections afforded by" the preclearance regime. In making these findings and reauthorizing the VRA, Congress declared it was "not willing to jeopardize 40 years of progress made by minority citizens by allowing [the preclearance provisions] to expire, especially in the face of the evidence of discrimination compiled in the record."

Though Congress may not have been willing to jeopardize that progress, the majority in Shelby had no such hesitation. While the Supreme Court had long held that, when considering questions of fact, legislatures are "entitled to a great deal of deference, inasmuch as Congress is an institution better equipped to amass and evaluate the vast amounts of data bearing on such an issue," no amount of judicial deference - let alone a "great deal" of it - can be found in the Court's opinion. Instead, the Court substituted its own judgment for that of Congress, looking to the same set of facts to reach the conclusion it preferred, ignoring Congress' reasoning, the Court's traditional deference to that reasoning, and (perhaps most tellingly) its precedent that "[t]he language and purpose of the Fifteenth Amendment . . . all point to one fundamental principle. As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting." (Emphasis added).

Fifty years after the VRA's initial passage and a mere two after the invalidation of a central means of its enforcement, we are once again faced with the question of how to devise a statutory scheme to uphold the guarantees of the Fifteenth Amendment. If we acknowledge, as Chief Justice Roberts (supposedly) has, that "voting discrimination still exists," then this task is no less important today than it was when the VRA was first passed. Since the Supreme Court chose to ignore precedent, history, and simple, unassailable facts in its rush to gut one of the most successful civil rights laws in this nation's history, it is a task which has become that much more difficult.

Mr. Hebert is the Executive Director and Director of Litigation at The Campaign Legal Center. Mr. Blevins is a Fellow at the Campaign Legal Center. The Campaign Legal Center partners with ACS for the Voting Rights Institute.  This post originally ran on the ACS blog on August 7, 2015 as part of its symposium regarding the 50th anniversary of the Voting Rights Act of 1965. To read it there, click here.


Gerry supervises the voting rights and redistricting program at CLC.