Tuesday, June 25, 2013

The Supreme Court Comes to Grips with Reality

by John Yoo

Today, the Supreme Court struck down the most onerous element of the Voting Rights Act of 1965 in Shelby County v. Holder. The Act had required several states and localities, almost all in the former states of the confederacy, to seek permission from the Justice Department or a federal court before changing any electoral procedure. This included the drawing of electoral districts. A separate provision, still in force after Shelby, prohibits individual measures to block access to the ballot on the grounds of race.

The Act made sense in 1965, when Jim Crow still prevented blacks from registering and voting in the South. But it doesn't anymore. One chart of voting registration by race, at page 15 of Chief Justice John Roberts' majority opinion, says it all:

After 40 years of the Voting Rights Act, African-American voting registration in the original Jim Crow states is actually the same or higher than whites. In the last election, African-American turnout was higher than white turnout in five of these six states. In the sixth state, the gap was less than 0.5 percent.

Shelby shows the Court -- albeit by a 5-4 majority -- finally came to grips with reality. The Voting Rights Act worked. But it was an extraordinary remedy that intruded on state sovereignty over elections. Like all extraordinary remedies, it was only for unusual times. Those times, despite those who have an interest in keeping racial preferences going for as long as possible, have come to an end.

One question, however, remains open: Will this be bad for Republicans in the South? The Voting Rights Act resulted in an alliance between the NAACP and the Republican Party in the 1980s and 1990s to pack minorities into voting districts. This had the effect of ensuring that minorities would be elected to Congress (to the delight of the NAACP), but diluted minority influence elsewhere by reducing their numbers in all other voting districts (the GOP's end of the bargain). The end of the Voting Rights Act might have the long-term effect of making staunchly Republican congressional seats in the South more competitive and reducing the number of safe seats for members of the Congressional Black Caucus. I would say that is another victory for the nation wrought by Shelby.


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