Listen to the hue and cry from liberals over the Supreme Court’s decision today in Shelby County v. Holder and you would think the conservative majority had just overturned Brown v. Board of Education or declared discrimination on the basis of race to be legal. Of course, the 5-4 decision on the future of the Voting Rights Act did nothing of the kind. The high court not only reaffirmed the validity of the act but also even left in place Section 5, which created a mechanism that would require pre-clearance by the federal government of any changes in voting procedures in states and localities that were deemed by Congress to be habitual violators of the right to vote. But what it did do was to declare the existing formula stated in Section 4 to be the places where such scrutiny would be carried out to be unconstitutional. The reason for this is so obvious that it barely deserves to be argued: the Jim Crow south that Congress put under the federal microscope five decades ago isn’t the same place today. If there is to be a formula that would require some places to get the government’s prior permission to do anything that affects voting, it should be one based on the current situation, not one crafted to deal with the problems faced by Americans during the Lyndon Johnson administration.
Why then are political liberals and the so-called civil rights community so riled up about the decision? Some are merely offended by the symbolism of any alteration in a sacred piece of legislation. But the reason why the left is howling about this isn’t so much about symbolism as it is about their ability to manipulate the law to their political advantage. Under the status quo, enforcement of the Voting Rights Act isn’t about reversing discrimination so much as it is in applying the political agenda of the left to hamper the ability of some states to enact commonsense laws, such as the requirement for photo ID when voting or to create districts that are not gerrymandered to the advantage of liberals. By ending pre-clearance until Congress puts forward a new scheme rooted in evidence of systematic discrimination going on today, it has placed all states on an equal footing and made it harder for the Obama Justice Department to play politics with the law. It has also given racial hucksters that continue to speak as if a nation that has just re-elected an African-American president of the United States was little different from the one where blacks couldn’t vote in much of the country.
The Voting Rights Act was needed in 1965 because for a century the federal government had failed to enforce the 15th Amendment—that guaranteed the right to vote of former slaves and any other American citizen—in the states of the old Confederacy. Though Americans were long taught that the period of “Radical Reconstruction” that followed the Civil War was an abuse that was rightly abandoned, the truth is the attempt to reconstruct the south didn’t go far enough and was ended too soon. What ensued was a Jim Crow regime in the south that was kept in place by a Democratic coalition of northern liberals and southern racists and enabled by apathetic Republicans. That is a sorry chapter of American history, but the achievements of the civil rights era have put it firmly in our past.
The reality of 2013 is that even the left is hard pressed to find anyplace in the country where anyone who is legally entitled to vote and wants to exercise their franchise is being prevented from doing so. Stating that is not to deny that racism still exists in some quarters of American society anymore than any other species of hatred. Nor does it imply that our electoral system is perfect or incapable of betterment. But to leave in place a legal formula that treated some states differently than others solely because of history is not only absurd, it is unconstitutional discrimination. In a country where, as it was argued before the court, Mississippi may have a more healthy voting rights environment in some respects than Massachusetts, preserving the battle lines of the fight against Jim Crow is not only meaningless, it actually hampers efforts to combat illegal practices.
But the main interest of those dedicated to preserving the status quo wasn’t in preventing states from denying a right to vote that is not in question. It was in holding onto their capacity to use federal law to prevent some states from passing voter ID laws that have been wrongly branded as a form of discrimination or voter suppression. The vast majority of Americans—including the members of those groups that civil rights advocates claim will be injured by voter ID laws—think these measures are merely a matter of common sense to ensure the integrity of the election system. But by disingenuously waving the bloody shirt of Jim Crow, the left has sought to brand race-neutral laws like voter ID a form of racism.
Opponents of the majority decision claim this is a judicial usurpation of the prerogative of the legislature since Congress has re-authorized the Voting Rights Act without changing the formula that placed all or parts of 15 states under the Justice Department’s control with regard to voting. But that is due to the fact that the vote to retain the act became a ritual by which members were forced to prove their anti-racist bona fides, not a rational debate about the actual provisions of the law. Congress lacked the courage to face facts on a part of the law that had past its expiration date, so the court was forced to deal with it.
Neither this decision nor the debate that will follow it will affect the ability of Americans to vote because that is a right that is no longer in dispute. What it will do is send a reminder to Americans that we have moved on from our unhappy past and that if we are to protect voting rights, it must be done on the basis of reality rather than sentiment or symbolism. That will make it harder for the left to accuse their opponents of racism without basis. But an American society that has thankfully moved on from this debate will be better off for it.