In the epic flood of news these past few days, I wanted to return to a U.S. Supreme Court decision from earlier in the week. After ruling on Fisher, a more far-reaching case came down: Shelby County v. Holder, in which the justices decimated the Voting Rights Act, one of the pillars of American democracy, by striking down the formulas used in Section 4 to determine which states are subject to Section 5 preclearance. Congress has reauthorized Section 5 on several occasions, under administrations of both parties. The statute would provide a remedy, for example, for punitive Voter I.D. laws, and indeed litigation in the D.C. Circuit has proceeded on that issue (though it is now presumably moot). It would also provide a remedy for reapportionment schemes that produce maps that fail to give minorities their fair share of representation, as the 2011 Texas House maps did. Also now moot.
I am not oblivious to the deficiencies of the Section 5 issues. I am uncomfortable with the idea that certain racial groups should receive preferential treatment in a statute, to be assured of gaining representation. There should be no “safe” seats for members of racial groups. Every candidate should have to work to win his or her district. At the same time, I strongly disagree with the Court’s conclusion that the vestiges of discrimination have largely been eliminated. It’s not true, and it is certainly not true in Texas. So my ultimate concern is this: Without the Voting Rights Act, how will the rights of minorities be protected? Where we stand, post-Shelby, is that the majority can do anything it wants to the minority, and there is no recourse, not to the federal government, and not to the judiciary. This is a shameful result, and does damage to the American dream.
If Fisher raises the alarm over the resegregation of higher education, then Shelby County raises the alarm over the resegregation of American politics. In other words, Shelby creates a situation in which it will be easy for the majority to draw districts that greatly diminish the likelihood that a person of color could win, and there would be no recourse to the courts or the Justice Department.