Why today is better than yesterday

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Article Highlights

  • The Act made sense in 1965, when Jim Crow prevented blacks from voting in the South. But it doesn’t anymore.

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  • In the original Jim Crow states African-American voting registration is the same or higher than that of whites

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  • Shelby shows that the Court — albeit by a 5-4 majority — finally came to grips with reality.

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Do conservatives have a lot more to be happy about today than yesterday? Yes. Today, the Supreme Court struck down the most onerous element of the Voting Rights Act of 1965 in Shelby County v. Holder. The Act had required several states and localities, almost all in the southern states of the confederacy, to seek permission from the Justice Department or a federal court before changing any electoral procedure. This included the drawing of electoral districts. A separate provision, still in force after Shelby, prohibits individual measures to block access to the ballot on the grounds of race.

The Act made sense in 1965, when Jim Crow still prevented blacks from registering and voting in the South. But it doesn't anymore. One chart of voting registration by race, found on page 15 of Chief Justice John Roberts's majority opinion, says it all:

I became a lawyer so I wouldn't have to work with numbers. But even I get it. After 40 years of the Voting Rights Act, in the original Jim Crow southern states African-American voting registration is actually the same or higher than that of whites. In the last election, African-American turnout was higher than white turnout in five of these six states, and in the sixth state the gap was less than 0.5 percent.

Shelby shows that the Court - albeit by a 5-4 majority - finally came to grips with reality. The Voting Rights Act worked. But it was an extraordinary remedy that intruded on state sovereignty over elections. And like all extraordinary remedies, it was only for unusual times. Those times have come to an end.

But there is one remaining and open question: Will this be bad for Republicans in the South? The Voting Rights Act resulted in an alliance between the NAACP and the Republican party of the 1980s and 1990s to pack minorities into voting districts. This had the effect of ensuring that minorities would be elected to Congress (which the NAACP liked), but diluted minority influence in regular politics by reducing their numbers in all other voting districts (which the Republican party liked). The end of the Voting Rights Act might have the long-term effect of making more congressional seats in the South more competitive and reducing the number of safe seats for members of the congressional black caucus. I would say that that is another victory for the nation wrought by Shelby.

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