by Gabriel "Jack" Chin, Professor of Law at the University of California, Davis, School of Law. He was co-author of an amicus brief in Shelby County, and of The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty, published in the Harvard Civil Rights-Civil Liberties Law Review.
Perhaps politicians will no longer do anything they can get away with to win elections, perhaps legislatures will no longer entrench themselves through districting and gerrymandering, perhaps, in short, in the recent past human nature has changed entirely. If not, though, the Supreme Court’s 5-4 decision invalidating the coverage formula of the preclearance provisions of Section 5 of the Voting Rights Act of 1965 may well come to be regarded as one of the Court’s grand overreaches. As obtuse on race as Dred Scott, as judicially activist as Lochner, Shelby County moves us a long step away from the goal of reliable elections reflecting the will of the majority.
The underlying problem is that African Americans are, and have been, bloc voters to a degree matched by no other racial or ethnic group. There is, therefore, a potential electoral payoff for conservatives in suppressing or manipulating their right to vote that exists in no other context. African Americans also hold the balance of power in many jurisdictions, and because of residential segregation, can be subject to discriminatory treatment in a way that “Democrats” or even Asians or Latinos cannot. Accordingly, African Americans have always been an irresistible target for manipulation and disenfranchisement, and volumes of creative electoral provisions have been created to prevent them from voting effectively. Critically, the impulse to discriminate will remain even if racial animus has diminished, so long as political rewards for suppression remain in place.
In Shelby County, the Court, per Chief Justice Roberts, insisted that our nation had changed. It held that Congress in reenacting the Voting Rights Act in 2006, should not have used a coverage formula based on practices and registration figures from the 1960s and 1970s. The extraordinary burdens of the preclearance provisions, it explained, had to be justified by current conditions. For a variety of reasons, many outlined in Justice Ginsburg’s dissent, the holding is not persuasive.