The key issue in Shelby County v. Holder is the "preclearance" provisions of the Voting Rights Act. Section 4 of the VRA "covers" numerous jurisdictions—predominantly but not exclusively Southern—with a history of vote discrimination and Section 5 of the VRA requires the covered jurisdictions to get approval from the federal government before changing their voting laws. We should start with the explicit constitutional authority for this legislation. The majority opinion asserts that "the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections." The problem, of course, is that the balance the framers and ratifiers of the Constitution of 1787 and 1789 established between the federal government and the states in supervising voting has been rendered obsolete by the Civil War Amendments. Section 2 of the 15th Amendment states that "[t]he Congress shall have power to enforce [the 15th Amendment's prohibition of racial discrimination in voting] by appropriate legislation." There is no question about Congress's authority to prohibit racial discrimination in voting. Legislation directed to this end does not interfere with any state "sovereignty" protected by the Constitution, and Congress should be given broad discretion to act.
Nevertheless, Chief Justice Roberts (speaking for the Court's four other Republican appointees) held a crucial provision of the VRA unconstitutional. The majority did not strike down Section 5, but it did strike down Section 4—in other words, maintaining the "preclearance" provision but as of now not applying it to any states. According to Roberts, times have changed, and therefore Congress's authority has changed as well. (Remarkably, Section II A of Roberts's opinion, laying out a theory of state sovereignty on voting that justifies his palpable disrespect for Congress, does not mention the 15th Amendment at all.) "Congress," the majority says, "did not use the record it compiled to shape a coverage formula grounded in current conditions. It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day." If Congress does not continually update Section 4, it cannot apply the preclearance provision, because patterns of discrimination have changed.
The problems with this argument are manifest. As Ruth Bader Ginsburg argues in the latest of her brilliant dissents, the Court perversely uses the success of the Voting Rights Act as an argument against it. As she observes, "throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet." The extensive history of states creatively nullifying the 15th Amendment provided a strong justification for preclearance, and the effectiveness of the provision shows that Congress was justified. To the majority, this very effectiveness makes the legislation "inappropriate." To restate this argument is to refute it. Section 4 may not represent the states that Chief Justice Roberts believes should be covered by it and it would not represent my list either, but this isn't the issue. To be constitutional, legislation enforcing the 15th Amendment needn't be "ideal," it need only be "appropriate." Section 4 continues to pass this test easily, and there is no legitimate warrant for the Supreme Court to usurp the authority of Congress in this case.
