With the latest Supreme Court term coming to a close today, with two of the three important final decisions authored by Chief Justice John Roberts, and given the times that we live in, it is worth reviewing some of the Chief Justice’s words from another one of his landmark decisions.
A little over seven years ago, on June 25, 2013, the Supreme Court effectively gutted the Voting Rights Act (VRA) by ruling that a key provision of the act — section 4(b) - was unconstitutional. Passed in 1965, the Act, of course, was intended to protect the voting rights which are guaranteed in the 14th and 15th Amendments to the Constitution. According to the U.S. Department of Justice, the VRA is considered to be the most effective piece of federal civil rights legislation in American history
In its landmark 2013 Shelby County v. Holder decision, Chief Justice John Roberts, writing for the 5-4 conservative majority, laid out his reasoning for invalidating a key part of an Act which had just been reauthorized in 2006 for 25 years by overwhelming bipartisan votes in Congress. (390-33 in the House of Representatives and a unanimous 98-0 vote in the Senate). The Chief Justice acknowledged that "voting discrimination against African-Americans was so entrenched and pervasive in 1965 that to cite just one example, less than 7% of African-Americans of voting age in Mississippi had been able to register to vote.” But, he continued, “There are examples of progress, more poignant than the numbers.... During the Freedom Summer of 1964 in Philadelphia, Mississippi, three men were murdered while working in the area to register African-American voters. On Bloody Sunday in Selma, Alabama in 1965, police beat and used tear gas on hundreds marching in support of enfranchising African-Americans. Today, both Philadelphia and Mississippi and Selma, Alabama have African-Americans mayors.”
“Our country has changed,” Roberts concluded. Given this progress, he suggested, the “extraordinary measures” utilized by a key provision of the Voting Rights Act were no longer permissible. Almost immediately after the decision was issued, several states which had been previously been subject to federal preclearance approval under the VRA resumed their efforts to enact legislation to make it more difficult for people to vote. These efforts are widely viewed as disproportionately impacting minorities.
Seven years on from this landmark decision, it seems readily apparent that the Chief Justice was wrong. Really, really wrong. The country most decidedly has not changed. Not really. Not fundamentally. The bodies of Ahmaud Arbery and Sandra Bland and Philando Castille and Tamir Rice and Eric Garner and Walter Scott attest to that bloody fact. As does the excruciating, videotaped killing of George Floyd and the deaths of hundreds if not thousands of others of African-Americans over the years. But the proof is not only in the seemingly unending stream of killings of unarmed black men and women. It also is captured quite efficiently on video in the lies and actions of Amy Cooper in New York, trying to have police target an enthusiastic African-American birder because he had the gall to request that she simply follow the posted local rules. And in the similarly endless accounts of the police being called on African Americans for the sins of waiting for a friend at Starbucks or having a barbecue in a park or asking for directions or napping in a university common room…. I could go on.
These deaths and indignities, large and small, speak volumes, of course. But so do the actions of several states in the wake of Shelby County v. Holder. Strict voter ID laws to combat what study after study have revealed to be the nonexistent problem of in-person voter fraud. ID laws where gun licenses are acceptable forms of identification but college IDs are not. minority communities. Sharp cuts to early voting. Purges of voter rolls.
A 2019 report revealed that nearly 1,700 polling places have been closed since the 2013 decision with a disproportionate number impacting minority communities. In a recent special election for a state Supreme Court seat in Wisconsin, the number of open polling places in Milwaukee (home to approximately 70% of the state’s African American residents) shrank from the normal 180 to 5 due to a lack of available poll workers in the midst of COVID-19.
And now we have a President who has openly admitted that he would like to have fewer people voting since he believes that making it easier to vote will benefit Democrats. He repeatedly rants about the alleged risks of voting by mail in the midst of a global pandemic, and promotes blatantly false claims of the dangers of widespread fraud from “voting by mail,” all the while he has happily engaged in the practice himself. Studies have shown, of course, that this COVID-19 pandemic is disproportionally — and devastatingly — impacting communities of color.
In short, Mr. Chief Justice – and with apologizes to Bob Dylan, the times are definitely not a-changin. And the decision you authored has only served to exacerbate that fact.