Shelby and the Left’s False Narrative

by Andrew C. McCarthy

For anyone other than a “social justice” demagogue, the Supreme Court’s Shelby decision, striking down Section 4 of the Voting Rights Act (VRA), is cause for celebration. In real life, this is a success story: A society that overcomes ingrained, systematic racial discrimination — and does it during a 40-year span while, in parts of the world the Left somehow prefers to America, discrimination endures and becomes even more lethal. But the Left does not live in a real nation; it lives in a false narrative: The United States is the villain that can never be redeemed, and racism is not just its original but its indelible sin.

In our real nation, the VRA was always of dubious constitutionality. The Supreme Court expressly recognized that in originally upholding it, just as Congress recognized it in originally limiting its duration to five years. It was a distortion of the constitutional principles of federalism and equal sovereignty among the states — absent which there would have been no union. The distortion was tolerated because of the gravity of the evil it addressed, just as surgery must traumatize the body in order to cure it. But the VRA was a remedy, not a new order of things. It was supposed to vanish once the disease — the denial of a core privilege of citizenship through systematic, pervasive racial discrimination — was cured.

The disease was long ago eradicated. That does not mean racism is over. There are vestiges of racism in our society. Because we are dealing with human nature, some of them are to be expected. But many are a direct result of the Left’s race-obsessed narrative, dominant on the campus and in the media for over a generation. It tirelessly promotes — it needs — the destructive canard that racial animus is the cause of every effect, and thus that systematic reverse discrimination, far from a temporary remedy, must be a lasting framework and a thriving industry.

Racism would otherwise die its natural death. It is a violation of the self-evident truth that we are all created equal. That government and our society failed, for a very long time, to keep faith with this truth is incontestable. But the truth is self-evident because it does not come from any government or society. It is part of our nature, a gift from our Creator, and an immutable tenet of our Judeo-Christian heritage. If we hold to what makes us Americans, all racism — including the purportedly benign kind — will be seen as immoral. For now, racism of the sort that drove the VRA to passage in 1965 is aberrational.

Significantly, and quite contrary to the Left’s hysterical rants against the Shelby ruling, the VRA was not intended to end racism. It specifically targeted the denial of voting rights by state governments (and their subdivisions) that practiced systematic racial discrimination. Once that denial ended, the VRA and its (at best) barely constitutional methods were to end.

That was originally supposed to happen 43 years ago. It should have happened no later than 1982 when, as the Supreme Court observes, the VRA was extended for 25 years rather than ended . . . only to be extended for yet another quarter-century in 2006. By then, in a nation on the cusp of electing its first black president, the states targeted by the VRA had long featured numerous black and other minority elected officials; indeed, such is the contemporary electoral parity between races that black registration and voter turn-out rates are often greater than comparative white rates.

The VRA’s remedial measures would have been unconstitutional — clearly so — but for the continuation of the evil they were designed to address, the denial of the right to vote guaranteed by the Fifteenth Amendment. As the Shelby majority observed, the framers intended states to be autonomous in the conduct of elections and to be treated with equal sovereignty and dignity; yet, VRA Section 5 requires them to obtain federal permission (from the Justice Department or a three-judge court) before enacting any laws related to voting, and Section 4 applies that requirement only to some states.

The Congress that enacted the VRA in 1965 with a five-year sunset, and the Congresses that followed by extending and expanding the VRA even as the blight addressed was decisively removed, did not anticipate our racially charged modern politics. Amplified by its media and academic allies, the Left smears opponents of its policy preferences as “racist” (with variations like “homophobic,” “Islamophobic,” etc.). Consequently, it became politically untenable to seek a legislative end to the VRA remedies that had long ago outlived their constitutional viability. And with Obama’s hard-left Justice Department practicing racial discrimination as a matter of policy, the constitutional violations against state sovereignty and the principle of racial equality have been exacerbated. It was for just such circumstances that the framers insulated the judiciary from politics — so that the constitutional order on which our liberty depends could be preserved even in dysfunctional political conditions.

The legal decision was far more straightforward than the political one. To support the VRA was to support the two-pronged formula Congress used to single out states and subdivisions for federal supervision: (a) the state’s use of devices like literacy and good-character tests to block voter participation, and (b) the state voting rate — if it was below 50 percent in places that employed obstructive devices, it tended to prove that voters were being systematically disenfranchised.

Now, the devices are no longer permitted — in fact, they have been outlawed for 40 years, and are held in such ill-repute that to suggest their reintroduction would be to commit political suicide. State voting rates, meanwhile, are way up and, as already noted, blacks actually outvote whites in several covered states. In the starkest example, Mississippi in 1965 had a black registration rate of less than 7 percent, versus nearly 70 percent for whites; by 2004, the black rate was 76 percent — about 4 percent higher than the white rate. Simultaneously, the Shelby majority noted that there has been a 1,000 percent increase in the number of black officials elected in the six states originally covered by the act.

Unable to refute this powerful evidence, the dissenting justices (the Court’s four reliable Leftists, led by Justice Ruth Bader Ginsburg) focused on the problem of minority-vote dilution. Even if you buy that as a real concern — those of us who prefer a pluralistic society to a tribal one do not — it is not the concern the VRA was enacted to combat. However precious it may be to hear the forces most hostile to common-sense voter-identification measures railing about vote dilution, the VRA was about vote obstruction. Even if contemporary conditions had not rendered it unconstitutional with respect to its once legitimate (and now accomplished) objective, the Court has no power to rewrite a statute in order to achieve a different objective. That is Congress’s job.

As Chief Justice John Roberts wrote for the majority, “The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command.” The VRA was the enforcement measure Congress commanded, and the Fifteenth Amendment has long since been vindicated. There is no reason to persevere in a remedy that, like successful surgery, is no longer necessary and damages other parts of the body. “The Amendment,” Roberts elaborated, “is not designed to punish for the past; its purpose is to ensure a better future.” Thus the Court struck down VRA Section 4. Congress may no longer single out states for federal voting supervision.

An even better future will be ensured when our constitutional order is fully restored, meaning no federal supervision over state elections. This is the argument Justice Clarence Thomas made in his Shelby concurrence, calling for the Court to follow the majority’s reasoning to its logical conclusion and strike down VRA Section 5 as well. As we have seen these last five years, a race-obsessed Justice Department acting as overlord is a far more worrisome reality than the unlikely specter of states regressing to institutional racism. Unfortunately, Section 5 remains — wounded, but still breathing.

Nevertheless, the Shelby decision is a victory for the Constitution that marks a proud societal achievement. Only a progressive could have a problem with progress.