The Chief Justice’s Long Game

By RICHARD L. HASEN Published: June 25, 2013

IN an opinion brimming with a self-confidence that he hides behind a cloak of judicial minimalism, Chief Justice John G. Roberts Jr., writing for a conservative Supreme Court majority in Shelby County v. Holder, cripples Section 5 of the Voting Rights Act.

The court pretends it is not striking down the act but merely sending the law back to Congress for tweaking; it imagines that Congress forced its hand; and it fantasizes that voting discrimination in the South is a thing of the past. None of this is true.

In the Shelby decision, we see a somewhat more open version of a pattern that is characteristic of the Roberts court, in which the conservative justices tee up major constitutional issues for dramatic reversal. First the court wrecked campaign finance law in Citizens United. On Tuesday it took away a crown jewel of the civil rights movement. And as we saw in Monday’s Fisher case, affirmative action is next in line, even if the court wants to wait another year or two to pull the trigger. Imagine striking down affirmative action and the Voting Rights Act in the same week!

Section 5 of the Voting Rights Act requires certain states and parts of states (mainly in the South) to get permission from the federal government before changing voting rules. The law puts the burden on jurisdictions with a history of racial discrimination to demonstrate that any voting change — from a voter-ID law to moving a polling place — won’t make the minority voters the law protects worse off. In Section 4, Congress provided a formula for determining the jurisdictions to which Section 5 applies — but the data used to construct the formula is from the 1960s or 1970s. Congress renewed the act, most recently in 2006, without touching the old formula.

In Tuesday’s opinion, the court held that the formula was unconstitutionally outdated. The chief justice couches his opinion in modesty, stating that the court is striking only the Section 4 coverage formula and not Section 5. But don’t be fooled: Congress didn’t touch the formula in 2006 because doing so would have doomed renewal. Congress avoided the political issue then, and there’s no way today’s more polarized Congress will agree upon a new list of discriminatory states.

The tone of the opinion is one of dutiful resignation: gravely, the court must strike down an act of Congress. Chief Justice Roberts reminds us that the court could have struck down the act in a 2009 case, but it gave Congress another chance.

Justice Ruth Bader Ginsburg’s dissent mocks this posturing: “Hubris is a fit word for today’s demolition of the V.R.A.” The court could have acted more narrowly, for example, by saying that Alabama’s continued problems with minority voting rights justified the law’s application to Shelby County even if not elsewhere. As it did in Citizens United, the court took the broad path when the narrow path would have limited the court’s damage.

That Chief Justice Roberts did not take the narrow path is no surprise. Back in the 1980s, he was President Ronald Reagan’s point person seeking to block Congress’s strengthening of another key provision of the act. (He failed.) As chief justice, Mr. Roberts has famously written that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Colorblindness is fast becoming his signature issue.

The chief justice is a patient man playing a long game. He was content to wait four years to strike down a key provision of the Voting Rights Act. Apparently he likes to say I told you so.

Today’s decision has real consequences. Chief Justice Roberts writes that ”regardless” of how we look at the record, “no one can fairly say it shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination” in the past. If that’s true, it’s because the Voting Rights Act works.

Here’s what’s going to happen now. Texas has already announced that it will put its voter-ID law into effect, a law that was on hold under Section 5 awaiting Supreme Court review. Texas’ law, one of the toughest in the nation, requires voters lacking acceptable ID (like a concealed-weapons permit) to travel up to 250 miles at their own expense to get one.

Texas’ law will be challenged on other grounds, but winning voter-ID cases has proved to be tough business. Now Texas can also re-redistrict, freed of the constraints of Section 5, splitting Latino and black voters into different districts or shoving them all in fewer districts to make it harder for them to have effective representation in the State Legislature and in Congress. The biggest danger of what the court has done is in local jurisdictions, where discrimination is more common and legal resources to fight back are thin.

The ball is now in Congress’s court. If House Republicans don’t want to alienate minority voters further, they will look to pass a new Voting Rights Act in response to the court’s decision. It’s hard to believe, but just last week the court in a case from Arizona confirmed that Congress had broad power under the Elections Clause of the Constitution to set the “manner” of conducting federal elections.

It is too much to hope that this divided Congress would use its power to stop discriminatory voter-ID laws or to require nonpartisan redistricting, particularly when some of its members believe these laws help them get elected. But if Congress fails to do anything in response to the case, it will be a second victory for the court’s conservatives, a victory on which they may have been counting.

Richard L. Hasen, a professor of law and political science at the University of California, Irvine, is the author of “The Voting Wars: From Florida 2000 to the Next Election Meltdown.”

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