John Roberts Wants Congress to Rewrite the Voting Rights Act. Why Would It?

A reporter runs down the steps in front of the US Supreme Court in Washington on June 25, 2013.

Photo by NICHOLAS KAMM/AFP/Getty Images

When my colleague Emily Bazelon watched the Supreme Court hear arguments on Shelby County v. Holder, she predicted that the justices would undo part of the Voting Rights Act. She was right. The 5-4 decision, which we’ll be covering at Slate all day, strikes down Section 4 of the Act, which we usually call “pre-clearance.” Up to now some states with histories of limiting vote access on racial grounds had to get their vote and district reforms approved by the government. The court undoes that, in an opinion by John Roberts, who argues that America has changed so much that this version of pre-clearance doesn’t make sense.

There is no valid reason to insulate the coverage formula from review merely because it was previously enacted 40 years ago. If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way based on 40-year-old data, when today’s statistics tell an entirely different story. And it would have been irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time. But that is exactly what Congress has done.

So he’s punting it to Congress—it’s up to them to come up with a new version of pre-clearance that reflects a world in which black politicians can win in the South (their incidence is up “1000 percent” since 1965, says Roberts, a fun use of statistics) and black voters line up at high rates. He’s arguing, implicitly, that Congress was sort of press-ganged into the 2006 vote that renewed the law. And that’s true. It’s politically tough for Republicans (who ran every branch of government in 2006) not to renew a civil rights law. They wouldn’t come up with a federal mandate-driven plan today, but if that plan exists and is part of the civil rights regime, they suffer if they try to kill it.

They don’t need to try. Pre-clearance is dead, and Congress would need to replace it with something—if they followed Roberts’ advice of many years—narrowly tailored. The VRA, no longer scripture that’s approved every few decades after studies and testimony, is something future Congresses can fight over.