Chief Justice Roberts Is Being Proven Wrong on the VRA

I recently discovered a great summary by Ari Berman on Chief Justice John Roberts’ long battle against the Voting Rights Act. It goes back to his days as a clerk for then-Chief Justice William Renquist and his days in Ronald Regan’s Justice Department. It all culminates in his writing of the majority opinion in Shelby County v. Holder in 2013, which eliminated the section that provides a formula for which states/localities must have any changes to their voting laws pre-cleared by the Justice Department due to a proven history of voter suppression.

The argument Roberts made in that case was basically that the whole notion of racist voter suppression was outdated—specifically the formula that was used to decide which states would be subject to pre-clearance by DOJ.

The states that have traditionally be covered by this section of the VRA include: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. Without the need to have their plans pre-approved by DOJ, Texas dusted off a 2011 voter ID law (SB 14) that had previously been found intentionally discriminatory and simply expanded the forms of ID that voters could use (SB 5).

Yesterday, a federal judge rejected that update and wrote:

SB 5 is an improvement over SB 14, but it does not eliminate the discrimination in the choice of photo IDs, which disproportionately continues to impose undue burdens on Hispanics and African-Americans.

That was a huge victory for voting rights activists. But the judge took it one step further.

Her decision was not just a major setback for Texas’ efforts to implement its photo voter ID law. It also raised the specter that the state may need to go back under the Voting Rights Act scheme known as pre-clearance. Pre-clearance requires that a state must get either the Justice Department or a federal judge to approve changes to its election policies. Texas was under the pre-clearance scheme until a 2013 Supreme Court decision invalidated the VRA formula that had put it and other states under it.

However, another provision of the VRA, Section 3, allows for states to be put under pre-clearance if they are found to have passed voting laws with a discriminatory intent.

By passing a law that is intentionally discriminatory, Texas has demonstrated that, at least in that state, racist voter suppression is not outdated, but is alive and well. Many of us knew that already. But now a federal district court judge has weighed in.

Since the Supreme Court made the ruling against the VRA in 2013, we have not only had states rush to pass legislation restricting access to voting, we now have a president who lied about 3-4 million people voting illegally. That led to his establishment of the so-called “Voter Integrity Commission,” which has been stacked with members who have spent their careers trying to restrict voting rights—especially for African Americans and Latinos. There is no doubt that their findings will be an attempt to further that cause. We even have elected officials on record saying that these voter suppression efforts are meant to target people of color.

If we go back to Berman’s review of Roberts’ record over the years, it is clear that his objections to the Voting Rights Act are much more broad than what he zeroed in on with the Shelby County v. Holder decision. Getting rid of the pre-clearance formula was perhaps the easiest way to undermine the whole idea of federal involvement in protecting people of color against voter suppression. But combining what just happened in Texas with all of the other efforts underway, it is difficult to imagine how Chief Justice Roberts would be able to make a case today that racist voter suppression is simply outdated.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly.