Bench Memos

Law & the Courts

Justice John Roberts Was Right: Things Have Changed in the South

Supreme Court Chief Justice John Roberts (Jonathan Ernst/Reuters)

Today (June 25) is the fifth anniversary of Shelby Co. Ala. v. Holder, a landmark Supreme Court case that ended two of the key provisions of the Voting Rights Act — Sections 4 and 5.

First enacted in 1965 in response to the invidious disenfranchisement of African Americans, Sections 4 and 5 prohibited nine states, which were mostly in the Deep South, and parts of seven others from enacting any changes to voting practices or procedures without the consent of the federal government. For example, before a polling place could be moved or a new redistricting plan be enacted, the Department of Justice had to “preclear” the changes.

The effects of the VRA were remarkable: In a few years, African Americans registered to vote in droves and, over time, participated in elections at the same rate or higher than whites. The legislation is still considered to be one of the most effective of the 20th century.

However, no other U.S. law prior to the VRA had a “preclearance” requirement like this one. Indeed, Congress and the courts recognized that this requirement was a drastic constitutional departure from our system of equal sovereignty among the 50 states. So, Congress set this provision to expire after five years, in 1970, but it was repeatedly reauthorized. In 2006, Congress reauthorized this “temporary” provision to expire in 2032, 62 years later than originally intended.

Congress reauthorized these provisions in 2006 based upon the black-voter disenfranchisement in the Jim Crow South in the 1960s, but those conditions measurably did not exist anymore. Furthermore, like so many other statutes that do not evolve with changes in our society, Sections 4 and 5 had unintended political consequences: Both Republicans and Democrats used the VRA to racially gerrymander voting districts to favor or disfavor their party’s candidates. This proved to be a recipe for polarized, racial politics.

In 2010, Shelby County, Ala., challenged the constitutionality of these provisions of the VRA in federal court, arguing that Congress’s failure to modernize the law in light of the enormous improvements in minority electoral opportunities in the “covered” jurisdictions rendered it unconstitutional. The case worked it way up to the Supreme Court three years after the lawsuit was filed.

Five years ago today, in a 5-4 opinion authored by Chief Justice Roberts, the Supreme Court struck down the provisions. The justices noted that there were no meaningful differences in minority voting opportunities in the Deep South and the rest of the country. Chief Justice Roberts wrote that in the South, “things have changed dramatically.”

The reaction to the decision was swift and bitter: The NAACP, American Civil Liberties Union, the Mexican American Legal Defense and Educational Fund issued press remarks excoriating the majority opinion. Civil-rights icon Representative John Lewis said the decision “stuck a dagger into the Voting Rights Act.” Even President Obama said he was “deeply disappointed” with the decision.

Many of the critics asserted that the decision would inevitably usher in a return to voting practices that diminish minority electoral opportunities.

Now, five years after the decision, has that happened? Has the South and the other jurisdictions once covered by the VRA reduced minority voting strength? What do the data reveal?

Contrary to the alarms of the racial-advocacy groups and others, African Americans and Hispanics continue to register to vote and participate in elections at rates that meet and exceed whites. For example, in Georgia, one of the few states that measure turnout by race, the share of black voters by year is:

2008     30.06 percent
2010     28.18 percent
2012     29.9 percent
2014     28.66 percent
2016     27.6 percent

These figures are computed from the post-election audit conducted by Georgia’s Secretary of State.

The small drop in black voters participating in the 2016 presidential election compared to the 2014 mid-term election is the same in the states that were never covered by the VRA such as Ohio, Pennsylvania, and Wisconsin.

Yet, the best evidence proving that Chief Justice Roberts was correct about the South comes from the results of an election that just took place in Shelby County, Ala., the “white flight” county that was vilified for its role in the litigation. There, Dr. Lewis Brooks, an African American, won election for the Superintendent of Education in the Republican primary, defeating a well-known white opponent. This is the highest elected position in public education in Shelby County and one of the most important elected positions among all other categories of public elected officeholders. He has no Democratic opponent in November.

The opinion Shelby Co. Ala. v. Holder was decided correctly. Chief Justice Roberts was right — things in the South have changed for the better.

Edward Blum, a visiting fellow at the American Enterprise Institute, is the president of the Project on Fair Representation.


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