Barely had the Court issued its opinion in the Shelby County, Alabama v. Holder, invalidating Section 4 of the Voting Rights Act and for all practical purposes Section 5, when the State of Texas promptly announced a new photo ID requirement. And the Court’s reasoning in this and other cases in recent years, including the freshly minted Arizona v. Inter Tribal Council of Arizona, 570 U.S. ____(2013), leaves little doubt that it is emboldening states to proceed on the path of the last few years, imposing ID and other limitations on access to the polls.
The Roberts opinion in Shelby County is short: 24 pages in all, which seems a fairly crisp, summarily delivered blow to a landmark voting law. Striking is the emphasis on the rights of states to legislate electoral restrictions with a freer hand. Right from the beginning, the Chief emphasizes that the remedy provided by Section 5 was “extraordinary” or “drastic” or “dramatic”: he applies those adjectives to the intrusion on the authority of states rather than to the long and sordid history of voting discrimination. Shelby County, No. 12-96, Slip Op. at 1.
On this point, the Chief bends Katzenbach v. South Carolina, 383 U.S. 301, out of recognizable shape. He would have the reader believe that the case represented on the federal government’s part a stretch—an “extraordinary,” “drastic,” “dramatic” action—warranted by exceptional circumstances. Lost in this gloss on the case is the actual tone and substance of the Katzenbach Court’s position:
Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the (Civil War) amendments fully effective. Accordingly, in addition to the courts, Congress has full remedial powers to effectuate the constitutional prohibition against racial discrimination in voting…Congress has repeatedly exercised these powers in the past, and its enactments have repeatedly been upheld. [citations omitted]
Id. at 326. The word “extraordinary” appears twice in Katzenbach v. South Carolina, Id. at 335, 361, and only once in the opinion of the Court; and there it describes state maneuvers to undermine voting rights, not the federal government’s actions to stop them. Id. at 335. The words “dramatic” and “drastic” are nowhere to be found.
If the there are limits on Congress’ remedial authority, the Court in Shelby County will not set out their doctrinal basis. In the Northwest Austin case, 557 U.S. 193 (2009), the Chief declared that there was no need to establish the standard of review. Whether the “proportionality and congruence” test of City of Boerne v. Flores, 521 U.S. 507 (1997), or just a test of a rational connection of ends and means, he believed that the VRA raised “serious constitutional questions.” Id. at 204. Yesterday, resolving those questions, he answered the question only by implication but he did supply an answer. The Court could strike the VRA down on the finding that Congress had not acted “rationally” or “logically” in reauthorizing the VRA, notwithstanding the vast majorities in both Houses—unanimity in one—in favor of extending the VRA’s protections. Shelby County, Slip Op. at 21, 23.
Certainly, the Court’s respect for Congressional judgment—its inquiry into the elected branch’s rationality—is different from what one finds in, say, Katzenbach v. Morgan, 384 U.S. 641 (1966) (Congressional authority under the VRA to enforce Equal Protection Clause against a New York State English literacy requirement):
It was for Congress, as the branch that made this judgment, to assess and weigh the various conflicting considerations—the risk or pervasiveness of the discrimination in governmental services, the effectiveness of eliminating the state restriction on the right to vote as a means of dealing with the evil, the adequacy or availability of alternative remedies, and the nature and significance of the state interests that would be affected by the nullification of the English literacy requirement as applied to residents who have successfully completed the sixth grade in a Puerto Rican school. It is not for us to review the congressional resolution of these factors. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did.
Id. at 653. Is the Court saying in Shelby County, within the framework of Katzenbach v. Morgan, that it cannot even “perceive a basis upon which” Congress could have re-authorized the VRA on the terms voted in 2006? Apparently so, because the ground on which the Roberts majority stands is the alleged irrationality of Congress’s action: its failure to recognize that times and conditions have changed. For the Chief Justice and his majority, the 1965 concerns were then, and this is now, and Congress irrationally ignored the difference and invaded the province of the states.
Voting rights, matched against the concern with the latitude of states, fares poorly in the Roberts analytical scheme. There is no mention of Yick Wo and of voting rights as “preservative of all rights,” 118 U.S. 356, 370 (1886), as is found in the Ginsburg dissent, Shelby County, Slip Op. at 8 (Ginsburg, J., dissenting); there is no searching examination of the basis of Congress’ concern with “second-generation” burdens visited by states on access to the franchise.
The issue for the Roberts majority is first and foremost, from start to finish, the intrusion on state authority. Consistent with its action only days ago in Inter Tribal Council—consistent with the jurisprudence on display in Crawford v. Marion County Election Board, 553 U.S. 181 (2008) and Purcell v. Gonzalez, 549 U.S. 1 (2006)—the Court is re-fashioning voting rights doctrine to restrict the scope of federal constitutional protections and the breadth of Congress’ authority to enforce them. Contrary to the Chief Justice’s insistence of the anachronistic character of the 1965 enactment, this case is as much about voting rights now as it is about the Voting Rights Act passed 48 years ago.
So the Court may assert that the VRA now boils down to a statute governing redistricting—that ‘second generation barriers’ are “not impediments to the casting of ballots but rather electoral arrangements that affect the weight of minority votes.” Shelby County, Slip Op. at 21. But, of course, in just the last few years, the states have moved in substantial numbers toward other measures that restrict or condition access to the polls. Known to the Court, certainly, was the ID movement with its variety of restrictions and the use of pre-clearance to block the implementation of an ID requirement in Texas and South Carolina. In an opinion that is attentive to history, that recent history goes unmentioned.
What is not mentioned will not go un-noticed. Texas is the first, but just the first, to have noticed.