Eric Posner's Slate SCOTUS Review: On Roberts' Opinion in Shelby County (#UChiLawSCt)
Chief Justice Roberts’ opinion in Shelby County v. Holder, the Voting Rights Act case, is a pretty lame piece of work. There is a longstanding constitutional norm of judges deferring to Congress. Courts strike down laws when they violate rights or exceed Congress’ power. But Section 5 of the Voting Rights Act, which requires nine states in the South (and other scattered places) to get approval from the Justice Department before changing their election laws, doesn’t violate anyone’s rights. It’s the type of legislation specifically authorized by the 15th Amendment of the Constitution, which says the right to vote “shall not be abridged” because of race or color. Roberts says that the singling out of Old South states, for what’s called “preclearance” by DoJ, makes little sense now that blacks are as likely to register to vote as whites in those states, or nearly so. But Congress passes hundreds of statutes that are based on weak evidence, and courts routinely uphold them. Roberts doesn’t even try to argue that the costs imposed on states by the preclearance part of the Voting Rights Act exceed the benefits for people who would otherwise be deprived of the vote, which is what would be minimally necessary to show that the law does not advance the public good.
Instead, Roberts focuses on the offense to the sovereignty of states and a newly invented idea he calls the “fundamental principle of equal sovereignty.” State sovereignty means that the federal government should not intrude on political decision-making of states, including, Roberts says, their election laws; equal sovereignty means that when it does, it should intrude equally—on all of the states to the same degree.
But neither of these principles can explain where Roberts ends up. The idea of state sovereignty is riddled with exceptions and is largely a joke these days. The federal government calls the shots, and the states obey, in the area of elections as much as in any other. Roberts accepts the constitutionality of Section 2 of the Voting Rights Act, which forbids states to discriminate against minority voters and in this way also intrudes on state control over their elections. (Section 2 wasn’t at issue in the case the court decided Tuesday, so it’s alive and well. But it relies on lawsuits, not preapproval by the Justice Department, to ensure the rights of minority voters.) If Section 2 does not violate the Constitution, then what is special about Section 5—which also forbids discrimination? From the standpoint of state autonomy, Roberts’ argument does not wash.