Maybe you've heard, but the conservative majority of the Supreme Court carried out a major offensive on Tuesday, marking the latest development in the vast rightwing conspiracy to overthrow the universe. This time, Chief Justice Roberts and his cabal struck a blow against minorities everywhere by destroying the Voting Rights Act of 1965.
Okay… that is not what happened. But judging from the coverage you are apt to find in most major media outlets, and from the rhetoric you are hearing from various representatives of the left, you would think the chief justice's opinion was radical. But the truth is that Roberts' logic, at least when viewed from a high level of abstraction, is not merely defensible, but correct. The problem gets more complex — and more interesting — when you consider the consequences of allowing reason to prevail.
The central question before the Supreme Court in Shelby County concerned a provision of the Voting Rights Act that applied to states with a history of discrimination (i.e. Southern states). It suspended "all changes to state election law — however innocuous — until they have been pre-cleared by federal authorities in Washington, D.C."
The court did not object to the idea of pre-clearance per se, but rather to the formula that governed its application. In essence, the formula for figuring out which states were subject to this oversight and which were not had not changed since 1965. Because "history did not stop in 1965," the court demanded that Congress re-write the pre-clearance formula in a way that evaluated all the states by the same standards, and did so on the basis of existing data.
To understand, and see the force behind, Roberts' logic, it helps to use John Rawl's concept of the veil of ignorance. If we were creating a formula for deciding which states would be subject to highly intrusive and constitutionally precarious regulation of the local democratic process (i.e. state voting laws), only a fool would argue that the best way of making such a decision was based on historic geography. Instead, we would hone in on data and use it as a means to extrapolate which states needed extra oversight and which did not. In other words, we would want to create some objective way of deciding which states have present conditions (not past conditions) such that additional federal oversight is warranted. That is the fairest way of making the decision, but also the most efficient way of figuring out where to focus the government's attention.
The Voting Rights Act did the exact opposite, and the arguments in favor of preserving the law were less than excellent. Essentially, the opposition was reduced to arguing that even if the formula was still based on the 1965 numbers, racists don't try to pull stunts because they know we are watching and won't clear them.
That strikes me, and I think it struck the court, as, unpersuasive and perhaps even a bit circular. The VRA was passed to eliminate the discriminatory laws and make the southern states, in essence, like everyone else. Unless one assumes that southern people are just inherently more racist than northern or western folks, the justification for continuing the regime on "deterrence" grounds is suspect, at least so long as only southern states are required to submit to it.
Unfortunately, the argument I just gave you is neater on paper than it is in practice because there are some things that it simply does not account for. Sadly, we do not live in a society in which our leaders (or even our citizens) make decisions from behind a veil of ignorance, and there is a pretty obvious reason why Congress didn't make the simple fix to the pre-clearance formula before it re-authorized the legislation in 2006: politics. It is not so much that our politicians are racist. In fact, quite the opposite. We are sufficiently terrified of discussing race in this country that jiggering with the pre-clearance formulas could have been a major political nightmare because the minute you start messing with the formula, some states are going to win, and some are going to lose (or that, at least, will be the perception). Consider, for example, how legislators would react to an adjustment that took Texas out of pre-clearance but dictated that Vermont would have to start being pre-cleared. The citizens of Vermont would raise holy hell, because implicit in being covered would be a fairly explosive accusation: You are racists and cannot be trusted. So you would have Bernie Sanders up there screaming about how unfair this was while states like Alabama would have their reps yelling about how they don't deserve to be covered either and on and on it would go...
So what did Congress do instead? It quietly retained the status quo, outdated formula and all. By not adding or subtracting any of the states that have to pre-clear, members of Congress were able to avoid having a tough conversation about our country's highly complicated and uneasy relationship with race.
Which finally brings us to the present dilemma: Our leaders are no more eager to have that debate now than they were in 2006, and there is quite literally no possibility of their disappearing behind the veil of ignorance to create a rational pre-clearance formula to replace the irrational one the Supreme Court just tossed. It is that reality that divides the conservatives and the liberals on the court. The conservatives' position is more or less that they should not and cannot worry about the political realities that govern congressional behavior. The liberals, in their more candid moments at least, would probably tell you that while the formula is pretty stupid, a lot of the states that were covered under the old formula would still be covered under any conceivable new formula and that being the case, the court should have found a way to leave the current system standing, if only because the burden is not that onerous as compared to the benefits for the rights of voters.
If one is truly committed to the American system of self governance, the liberal argument is tricky and a bit hard to accept. That said, to deny the moral seriousness of the point would be almost as stupid as suggesting that Chief Justice Roberts does not care about the rights of minorities…