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Proof that the Supreme Court got it wrong in Shelby

George E. Curry | 4/23/2015, 10 a.m.
When the Supreme Court gutted a key provision of the 1965 Voting Rights Act nearly two years ago in Shelby ...
United States Supreme Court building in Washington, D.C. (Photo: Kelly Marshall Smoot/CNN)

— When the Supreme Court gutted a key provision of the 1965 Voting Rights Act nearly two years ago in Shelby County v. Holder, many of us suspected that Chief Justice John Roberts in particular was distorting the severity of voting violations in jurisdictions covered by the act. As a popular GEICO commercial says, now we know.

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George E. Curry

We now know because of extensive research conducted by William R. Kenan, Jr., a professor at the California Institute of Technology, titled, “Do the Facts of Voting Rights Support Chief Justice Roberts’ Opinion in Shelby County?”

By a vote of 5-4, the Supreme Court struck down as unconstitutional Section 4 of the law that requires certain jurisdictions with a proven history of racial discrimination to pre-clear any changes in their elections – such as redistricting, annexations and switching to at-large elections – with either the Justice Department or the federal District Court in Washington, D.C.

Despite renewals of the Voting Rights Act by Congress in 1970, 1975, 1982 and a 25-year extension in 2006, Roberts contended that the preclearance provision was no longer needed.

Writing for the majority, Roberts said, “…. But history did not end in 1965. By the time the Act was reauthorized in 2006, there had been 40 more years of it. In assessing the ‘current need’ for a preclearance system that treats States differently from one another today, that history cannot be ignored. During that time, largely because of the Voting Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers. And yet the coverage formula that Congress reauthorized in 2006 ignores these developments, keeping the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs.”

However, as Kenan points out in his research, “Neither the Chief Justice nor any scholars or civil rights proponents or opponents have systematically examined the evidence on the entire pattern of proven voting rights violations over time and space.”

Kenan examined the issue by compiling what he called the largest such database in existence, including numerous maps to make his point.

“Congress in 2006 was not presented with maps or other documents that laid out the pattern of proven voting rights infractions so starkly, but it received plentiful evidence in the form of lists and discussions of cases that showed that the problems were still overwhelmingly concentrated in the South and that discrimination continued to be widespread,” he wrote.

“And the map would have shown that the number of voting rights infractions had increased, not decreased, compared to the earlier period.”

Kenan explained, “An objective observer in 2006 comparing the number and location of all successful voting rights events in the period since the last renewal in 1982 with the events of the years from 1957 to 1981 would conclude that Section 5 needed to be renewed, and that the coverage scheme still fit the problem remarkably well, hitting the target about 94% of the time. Even among Section 2 cases, which could be filed anywhere in the country, 83.2% of the successful cases from 1982 through 2005 originated in covered jurisdictions.”