Epstein on Shelby County (#UChiLawSCt)
In his New York Times op-ed, “The Chief Justice’s Long Game,” Richard L. Hasen, a noted authority on voting rights, takes deep umbrage at yesterday's Supreme Court decision in Shelby County v. Holder, which he regards as an illicit part of a long-term agenda to dismantle some of the major safeguards of the Civil Rights era. He is wrong, I believe, in dealing both with the merits of the issue and the larger social context of which it is a part.
The Roberts opinion struck down Section 4 of the 2006 Amendments to the Voting Rights Act, but left Section 5 untouched. Section 5 allows the use of an exhaustive preclearance system in which affected states have to submit any and all changes in voting requirements, broadly construed, to the federal government for approval. The overturned Section 4 sets out the states that are subject to this onerous regime. In 1965, Section 4 included nine states, mostly Southern. With the 2006 amendments, those 40-year old classifications were fixed in place for another 25 years.
Hasen argues that the Court “fantasizes that voting discrimination in the South is a thing of the past.” I am old enough to remember the state of race relations in the United States in 1965. The transformation in race relations since that time is palpable and it has been decisively and unquestionably for the better. It is irresponsible to suggest that nothing much has changed in the South on this issue. Hasen’s off-handed slap trivializes the enormity of Jim Crow by suggesting any resemblance whatsoever between the situation then and the situation now.