In 2013, the Supreme Court read John Calhoun’s theory of federalism into a constitutional amendment designed to remove Calhounism from the Constitution in order to gut the most important civil rights legislation since Reconstruction. In his indifferently crafted op-ed for the majority, Chief Justice Roberts offered the reassurance that litigation under Section 2 was still possible:
Inspired to action by the civil rights movement, Congress responded in 1965 with the Voting Rights Act. Section 2 was enacted to forbid, in all 50 States, any “standard, practice, or procedure . . . imposed or applied . . . to deny or abridge the right of any citizen of the United States to vote on account of race or color.” The current version forbids any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Both the Federal Government and individuals have sued to enforce §2, and injunctive relief is available in appropriate cases to block voting laws from going into effect. Section 2 is permanent, applies nationwide, and is not at issue in this case.
And, in theory, states who demonstrably showed racial discrimination could be bailed back in to preclearance under Section 3.
Of course, roughly 20 seconds after Shelby County was issued, Republican statehouses reacted to the Supreme Court’s assertion that racism was no longer a serious issue and Congress had lost its explicit constitutional authority because its, um, remedy was too effective by rushed to pass legislation that would suppress the votes of racial minorities. A man who was honest about opposing discriminatory legislation would be upset about being made to look ridiculous. Earlier today, however, the Shelby County five showed that they fully plan to ignore most violations of Section 2 as well.
Rick Hasen, like Justice Sotomayor, is unsparing:
The decision is audacious in many ways. To begin with, the court decided to review the lower-court order even though there was no injunction in place, finding an exception to the usual rule because the lower court was “effectively enjoining” the use of the old Texas maps. This is not judicial minimalism or proceeding slowly. Justice Sonia Sotomayor’s dissent spends many pages explaining how the court contorted its usual rules limiting its jurisdiction to review of actual lower-court orders to reach this result.
I am beginning to think that Justice Alito’s opinion upholding Ohio’s vote suppression law was not the apolitical application of neutral principles of statutory interpretation!
In perhaps the most important part of Justice Samuel Alito’s majority opinion, the court emphasized that courts must “presume” the “good faith” of the legislatures in determining whether a state was engaged in racial discrimination. Further, because race and party overlap so much in places like Texas, what looks like racial motivation may be partisan motivation.
The upshot of this analysis is that it is going to be well near impossible for plaintiffs to prove that states have engaged in intentional racial discrimination so as to put those states back under federal supervision for voting under Section 3. With this thumb on the scale in favor of states, and the ability to say they were just being partisan and not engaged in race discrimination, they will have a freer rein to engage in discriminatory action. That’s happening not only in Texas, but in states like North Carolina (also subject to federal oversight before Shelby), which the Fourth Circuit found had targeted black Americans “with almost surgical precision” in passing an earlier strict set of voting rules and that is back at it again, trying to reimpose voter ID and pass a host of other discriminatory measures.
Abbott gets even worse. As professor Richard Pildes noted at the time of oral argument, the court spent so much time on the question whether the case was properly before it that it spent little time on difficult issues under Section 2 of the Voting Rights Act. And sure enough, in a pretty brief but significant part of the majority opinion, the court in Abbott seems to make it harder for plaintiffs to win cases under Section 2 as well, though it will take some time to sort out all the implications.
Alito’s opinion, in short, uses a method reactionaries have used to uphold discriminatory practices since the Reconstruction Amendments were added: create standards that make proving discrimination essentially impossible. And it should also be crystal clear that this Court will not uphold any preclearance formula passed by Congress that covers any number of states between one and fifty. This is a flatly neoconfederate Court, refusing to enforce the Reconstruction Amendments to stop racial discrimination but willing to use them to stop integration.
One of the many things that’s at stake in presidential elections is whether the Constitution’s mist critical provisions will be meaningfully enforced. If you’re wondering when I’ll stop passionately arguing against people who see elections as fora for atomistic consumer expression, the answer is “never.”