Jim Crow Is Dead, Get Over It

Hearing people on the Left whine today about what a setback the Supreme Court's decision in Shelby County v. Holder striking down the preclearance formula that currently only applies to some southern states means for voting rights is somewhat like the recurring false prophecies of end times visited upon us with regularity. Rational minds point out that the Court's 5-4 majority simply reached a conclusion Congress' great partisan divide won't allow it to reach: Jim Crow is dead.

Chief Justice John Roberts, who wrote the majority opinion, acknowledged that the original Voting Rights Act of 1965 employed extraordinary measures to deal with an extraordinary problem existing in that era with some southern states going to great means to deprive black Americans the right to vote. Essentially, Congress' continual re-authorizations of the original act, which was only intended as a temporary measure when first enacted, have been based on outdated data and circumstances despite overwhelming evidence that the evils sought to be remedied are non-existent today.

Section 5 of the Act establishes the system for requiring some states to seek authorization from the Justice Department before enacting any state law regarding voting. Section 4 of the Act, which the Court struck down today, established the formula for determining which states were required to seek preclearance before enacting any voting law. The original formula covered seven states: Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. Counties within a number of other states with large minority populations have been added in subsequent re-authorizations, although certain jurisdictions have been able to bail out of the Act's coverage over the years.

Because election laws have increasingly become federalized, particularly with respect to the voter registration process, the election laws among the state have become much more uniform. Yet the Voting Rights Act continued to rely on a formula based on data that was nearly a half-century old. Black voter turnout actually exceeds white voter turnout in all but one of the original states covered by the Act; the gap in the remaining state is statistically insignificant. The fact is that the conditions that originally justified the extreme measures employed by the original law no longer exist as Chief Justice Roberts pointed out in his opinion.

What we've seen happening under the most partisan Justice Departments in the modern history of the country under Eric Holder was an arbitrary denial of the right of the states affected by the Act to enact voter integrity laws that other states have been able to enact, like Indiana's Voter ID law, which the Supreme Court has upheld. Frankly, instead of securing the right to vote, the Justice Department seems more determined to warp the right by seemingly supporting policies that promote, not protect against vote fraud, which is an equally valid concern.

Justice Ginsberg's dissenting opinion rests primarily on the basis of who gets to decide whether the extraordinary measures contained in the Act are sill needed. She thinks Congress should get to make that decision and the Court should defer to Congress, the opposite from the judicial activist role she normally advocates when it comes to ensuring rights. The reality is that Congress can't change the law because anyone who has dared to step forward and recognize the changed circumstances is lambasted as a racist who wants to revert to the days of Jim Crow. Showing their true colors, several liberal Democratic officials and leftist commentators lashed out at the Court's only black justice, Clarence Thomas, referring to him derisively as "Uncle Thomas."

The majority got it right. Congress can't simply continue to dictate voting laws to a handful of states when the evidence suggests those states are no more susceptible to administering their voting laws in a discriminatory fashion than the rest of the states.