As Texas prepares to pass Jim Crow III: The Trump Revolutions, it’s worth remembering that none of this would be possible without John Roberts removing section 2 of the 15th Amendment from the Constitution by fiat:
The 15th Amendment — one of three ratified in the wake of the Civil War — forbids states from discriminating on the basis of race in their election laws and practices. Like all of the Civil War amendments, Congress was given the power to enforce this amendment with “all appropriate legislation” and, in 1965 it finally did just that by passing the Voting Rights Act, the most important civil rights law passed by Congress since Reconstruction. The most important provision of the VRA required jurisdictions with a history of denying people the right to vote based on their race to “pre-clear” any changes to their election laws with the Department of Justice.
Texas was one of the covered jurisdictions. (Lest you think this was strictly regional, both Brooklyn and the Bronx were also covered jurisdictions, as were three counties in California and two townships in Michigan.)
But in the infamous 2013 decision Shelby County v. Holder, a 5-4 party-line majority of the Supreme Court ruled that the preclearance formula in the Voting Rights Act was unconstitutional because it violated the “equal sovereignty of states” as those states covered by preclearance hadn’t instituted any race-based voting laws since it was passed, so they should no longer be subject to the law’s review. In other words, the framers of the 15th Amendment empowered Congress to protect the right to vote, Congress used that power to pass legislation that did that successfully, and a partisan Supreme Court ruled the law unconstitutional because it worked too well.
Legally, the decision was a train wreck. “This is a principle of constitutional law of which I had never heard,” wrote Reagan-appointed federal Judge Richard A. Posner about the court’s “equal sovereignty” holding, for the “excellent reason” that “there is no such principle.”
Even if one could leave aside the opinion’s utter lack of any foundation in the text of the Constitution, its internal logic was preposterous on its face. Arguing that Congress had lost its authority to enforce the 15th Amendment in its preferred manner because its remedies are too effective, as University of Colorado law professor Paul Campos observed, is like arguing “that a vaccine that protects against an illness is no longer necessary, because those who have been given the vaccine do not develop the illness.”
“What’s your point?” — the majority of Republican voters
Of course, Texas Republicans also have some other critical allies:
There is another way to stop Texas Republicans from attacking the right to vote, though. The House of Representatives has passed legislation that would, among many other things, give everyone in America the option of voting by mail and guarantee two full weeks of early voting in every state. Republicans, of course, have vowed to filibuster the legislation.
So if Sens. Joe Manchin of West Virginia, Krysten Sinema of Arizona and other Democrats who may currently oppose reforming the filibuster remain opposed, they’ll allow Republicans to continue to block new voting rights legislation, and join the Roberts court as critical allies in the Republican war on democracy.