From the department of looking on the bright side: Mother Jones reports that lower courts are finding ways to protect voting rights even in the wake of Shelby v. Holder, the Supreme Court’s recent blow to the Voting Rights Act (VRA). Shelby, decided in 2013, was the culmination of Chief Justice John Roberts’s career-long antipathy for major parts of the VRA, especially the “preclearance” requirements that the Court’s decision effectively gutted. Quoting election law expert Rick Hasen, who notices “a lot of resistance among some lower-court judges to Roberts’ views of the state of race relations and voting,” the article notes that voter ID laws in states like North Carolina and Texas have been rejected even by conservative judges. And with only four reliably conservative votes on the Supreme Court, Roberts currently lacks the power to overturn these lower court rulings (though things could, of course, grow far worse if President Trump were to fill the current vacancy, or if the Senate held out until a Republican victory in 2020).
Roberts’s decades-long frustration with the VRA is one of the most important (and under-discussed) stories behind the racial landscape of the United States today. As a young lawyer, Roberts was deeply influenced by a tradition of conservative racial thinking that now faces extraordinary popular resistance. One key element of that tradition, visible in his Justice Department memos from the early 1980s, is a deep fear of federal intrusion, informed by a belief that the integrity of local political processes is compromised by outside interference. For Roberts, this translated into skepticism about many parts of the VRA. In one memo about Section 2 of the law, which prohibits attempts by states and localities to erect voting qualifications that “deny or abridge the right of any citizen of the United States to vote on account of race or color,” Roberts warned:
Moreover, violations of §2 should not be made too easy to prove, since they provide a basis for the most intrusive interference imaginable by federal courts into state and local processes…. It would be difficult to conceive of a more drastic alteration of local governmental affairs, and under our federal system such an instrusion [sic] should not be too readily permitted.
One can detect a similar concern for the prerogatives of states and localities in Roberts’s reasoning in Shelby: This has been a consistent concern throughout his professional life. Then, as now, he seems to have little concern for the fact that the various tools of discrimination and oppression that states have rushed to reinstate in the wake of his ruling also represent “drastic alterations of local governmental affairs”—even if that’s increasingly apparent to a range of judges on lower courts.
The Mother Jones article reminds us that Roberts, as if bristling in anticipation of liberal objections to his view, groused in his Shelby opinion that preclearance was outdated because “history did not end in 1965.” Indeed, it seems more in line with his views to say that history started anew there. Fortunately, a growing number of judges—to say nothing of a nationwide protest movement—do not share that same view.