In 2013, a 5-4 Supreme Court decision written by Chief Justice John Roberts eviscerated the 1965 Voting Rights Act. In Shelby County v. Holder, the court struck down the most crucial enforcement mechanism in the most important civil rights statute since Reconstruction.
How did we get here? A major New York Times Magazine story by Jim Rutenberg provides an invaluable history of the long battle conservatives have fought against the law. And it shouldn't be surprising that one major player in this movement was John Roberts himself.
It's important to emphasize the spectacular shoddiness of Roberts' opinion in Shelby County. It fails to make an even remotely coherent argument to justify declaring that Section 4 of the Voting Rights Act — which used a formula to determine which areas of the country required greater federal oversight of voting practices — is unconstitutional. The text of the Fifteenth Amendment explicitly authorizes Congress to pass legislation to address racial discrimination in voting, and the Voting Rights Act does not violate any specific textual provision.
Whether one agrees with them or not, the Roberts Court's crucial decisions on gun rights and campaign finance at least have a plausible link to specific constitutional provisions. Shelby County does not.
So what was Roberts' theory? By requiring jurisdictions with a history of vote discrimination to clear any changes to their election laws with the Justice Department, Congress violated the "equal sovereignty of the states." The obvious problem with this theory is that there is no such principle in the Constitution. Roberts did not cite any text supporting his view, and the only relevant precedent was one of Roberts' own opinions.
Even worse is the relevant precedent that Roberts didn't cite: the Supreme Court's infamous 1857 case Dred Scott v. Sanford, which relied in part on a theory of equal state sovereignty to explain why Congress could not regulate slavery in the territories.
So how do we explain the Supreme Court resurrecting discredited theories invented by the antebellum slave power to gut the Voting Rights Act? As Rutenberg explains, it's the culmination of a long struggle by conservatives against the law.
One reason Rutenberg's story is so important is that, if you look at votes by Congress, you might think that there was a bipartisan consensus in favor of preserving and extending the law. The most recent re-authorization of the Voting Rights Act, in 2006, passed the House 390-33 and unanimously in the Senate. It was signed by a Republican president. Indeed, in an argument that was recently inducted into the Specious Argument Hall of Fame, Justice Antonin Scalia suggested at oral arguments that the strong bipartisan consensus behind the act was reason to be suspicious of it.
But this public Republican support for the Voting Rights Act is highly misleading. As Rutenberg shows, behind-the-scenes conservative operatives have been acting to undermine the Voting Rights Act for years. Lawyers affiliated with the Reagan administration, like John Roberts, developed theories that made enforcing voting rights more difficult, and these theories began to hold sway in an increasingly conservative Supreme Court.
Essentially, the Republican Party worked a clever bait-and-switch. Legislators would nominally support the Voting Rights Act, while Republican executive officials, judges, and statehouses worked full-time to undermine its effectiveness at every turn. This incremental war against the Voting Rights Act has the benefit of advancing Republican policy views and interests without attracting the public attention that would come from outright refusing to re-enact the Voting Rights Act.
But let's be clear: The Supreme Court reflects the views of today's Republican Party much more than the 2006 vote does. (Note that Congress has not acted to revise the Voting Rights Act, although the Supreme Court nominally left the door open for a different pre-clearance formula.)
And this war against the Voting Rights Act is connected to a broader movement against voting rights. Higher voter turnout generally benefits the Democratic Party. Not coincidentally, various rules that make it harder to vote have been enacted by Republican-controlled states. Such vote suppression is generally defended on the grounds that it's intended to thwart voter fraud, but these arguments are pathetically feeble.
In another essential article, Ari Berman of The Nation describes this campaign of disenfranchisement. Berman links the beginning of this campaign to the crucial 2000 election, which among other consequences led to a long-time enemy of voting rights being nominated chief justice of the Supreme Court. George W. Bush's razor-thin plurality in Florida was the product of vote suppression on both ends. Before the fact, the Florida government (governor: Jeb Bush) engaged in a purge of the voter rolls that included many eligible voters. After the fact, both Bushes worked tirelessly to prevent a fair recount. This all culminated in Shelby County's only competition for the worst Supreme Court decision of the last 20 years: Bush v. Gore.
The Republican Party, in its steady march to the right, has given up trying to broaden its coalition. Instead, it relies on vote suppression to have a chance of winning. All of this means a war on voting rights that is far from over.
