Rather than watch the pundits and prognosticators today, in these sweaty hours before Donald Trump prematurely declares himself the victor and unleashes an army of lawyers to challenge a rigged election, I found myself reading the 5-4 John Roberts decision that in 2013 struck down the enforcement sections of the 1965 Voting Rights Act. It was another reminder that, in the unappealable Supreme Court, anyway, the dissent can be 100% vindicated by events set in motion by a wrongly decided opinion (see, for example Dred Scott v. Sanford) and the majority shown to be indefensibly wrong. Oh, well. One more thing that will need to be fixed when we have a semi-responsive democratic federal government again.

Reading John Roberts’s calm, measured analysis, it seems completely reasonable and sound to strike down this law at the request of an Alabama county complaining of the unconstitutional restriction of its right to full legal sovereignty in enacting all state laws. Roberts and his four conservative colleagues overturned the two lower federal courts and ruled in favor of Shelby County, Alabama.

The opinion focuses on the unreasonableness of Congress relying on 40 year-old data to continue to single out and judge jurisdictions that have long ago banned the specific outlawed discriminatory practices complained of in 1965. He bases his finding of unconstitutionality on a complete lack of contemporary evidence for why Congress reauthorized the sections of the Voting Rights Act that select certain states for preclearance of any proposed changes to their voting laws before they go into effect. He rules this an unconstitutional infringement of the Tenth Amendment guarantee of state sovereignty in lawmaking.

When you are done reading Roberts’s measured, reasonable sounding opinion you have barely a whiff of how radical the judicial activism of the 5-4 “Originalist” majority is in Shelby County v. Holder.

Seriously. I hate bland corporatist John Roberts, I know how destructive this ruling has been (up there with its pernicious close 5-4 cousin Citizens United v. FEC which ruled unlimited money spent in political advocacy is protected First Amendment speech), and I’m a lawyer, but his opinion on first reading struck me as reasonable and respectable, based on what he presented. It’s hard to see, from what he lays out, where his judicial reasoning breaks down. (The same goes for Roger Taney’s infamous majority opinion in Dred Scott, accept the premise, innate black inferiority to whites, and there is not a weak link in his legal analysis.)

Only when you read Ruth Bader Ginsburg’s dissent (another magnificent piece of clear, precise legal and moral logic) do you realize the audacity of the Roberts majority’s legal sleight of hand. You learn that the reauthorization of the Voting Rights Act was passed, after 21 hearings and 15,000 pages of evidence of ongoing discrimination in the states under preclearance, by a vote of 390-33 in the House and, after further debate, 98 to 0 in the Senate. Reading the John Roberts decision you’d have no reason to suspect that President George W. Bush signed the reauthorization into law a week later, as Ginsburg writes:

recognizing the need for “further work . . . in the fight against injustice,” and calling the reauthorization “an example of our continued commitment to a united America where every person is valued and treated with dignity and respect.” 

I cut and pasted various sections of the arguments to include in this post. There are hundreds, perhaps thousands, of words on my clipboard (most of them by the late, great RGB). I don’t have the strength to go through them at the moment, though many are well worth considering (I’ll post a link back here if I’m able to go through my notes and incorporate some of the more vivid quotes into this discussion). The entire decision is HERE and it is a rewarding read (though not to everyone’s taste).

In her most famous, and widely quoted, line from the dissent Ginsburg writes:

Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

Here is the quote in situ (citations removed) — §4(b) sets out the reasons for designating a state as one the Voting Rights Act has to keep a watchful eye on under Section 5.

Instead, the Court strikes §4(b)’s coverage provision because, in its view, the provision is not based on “current conditions.” It discounts, however, that one such condition was the preclearance remedy in place in the covered jurisdictions, a remedy Congress designed both to catch discrimination before it causes harm, and to guard against return to old ways. Volumes of evidence supported Congress’ determination that the prospect of retrogression was real. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

But, the Court insists, the coverage formula is no good; it is based on “decades-old data and eradicated practices.” Even if the legislative record shows, as engaging with it would reveal, that the formula accurately identifies the jurisdictions with the worst conditions of voting discrimination, that is of no moment, as the Court sees it. Congress, the Court decrees, must “star[t] from scratch.” I do not see why that should be so.

We learn from the dissent that states can get out of supervision by the Voting Rights Act by demonstrating, with ten years of a clean record on voting discrimination, that they should he allowed out of the preclearance requirement. They are then released from the law’s oversight. Who knew? There were hundreds of recent instances, cited by Ginsburg in the dissent, where, in recent years, the states that complained of the burden of the Voting Rights Act had been stopped by the Department of Justice from implementing new forms of voter discrimination. There was also massive proof submitted that racial discrimination in voting is alive and well in these jurisdictions and elsewhere. Here’s one vivid 2010 example, from Alabama (citations removed– paragraph breaks inserted):

A recent FBI investigation provides a further window into the persistence of racial discrimination in state politics. Recording devices worn by state legislators cooperating with the FBI’s investigation captured conversations between members of the state legislature and their political allies. The recorded conversations are shocking.

Members of the state Senate derisively refer to African-Americans as “Aborigines” and talk openly of their aim to quash a particular gambling-related referendum because the referendum, if placed on the ballot, might increase African-American voter turnout. Legislators and their allies expressed concern that if the referendum were placed on the ballot, “‘[e]very black, every illiterate’ would be ‘bused [to the polls] on HUD financed buses’”).

These conversations occurred not in the 1870’s, or even in the 1960’s, they took place in 2010. The District Judge presiding over the criminal trial at which the recorded conversations were introduced commented that the “re­cordings represent compelling evidence that political exclusion through racism remains a real and enduring problem” in Alabama. Racist sentiments, the judge observed, “remain regrettably entrenched in the high echelons of state government.”

These recent episodes forcefully demonstrate that §5’s preclearance requirement is constitutional as applied to Alabama and its political subdivisions. And under our case law, that conclusion should suffice to resolve this case.

Within 24 hours of the Roberts 5-4 majority striking down Section 5 of the Voting Rights Act, states formerly restrained by it — led by the great state of Texas, if I remember correctly, followed by several other Republican-led states, passed new laws to restrict the voting rights of selected racial and ethnic minorities.

Fair is fair, like the 2020 rule of one ballot drop box per Texas county, regardless of population. What’s old is new again. No poll tax (unless you consider an unpaid 8 hour wait to vote a “tax” for a minimum wage worker), no literacy tests (which, back in the late nineteenth century you were exempt from if your grandpappy didn’t have to take one — sorry, former slaves), no other in- your-face specifically identified and banned voter suppression– all made illegal in 1965. “So what is the problem here in 2013, in 2020?” ask Roberts, Scalia, Thomas, Alito and Kennedy.

The problem is that a one vote majority of unappealable partisans, literally members or supporters of an ideologically pure political fraternity (the Federalist Society) can calmly and legally, with the stroke of a pen, strike down the will of the electorate expressed by a united, bipartisan Congress, and an approving president. An unappealable one vote partisan majority. That ain’t really democracy, you know.