On Tuesday of last week, the Supreme Court of the United States (SCOTUS) struck down a key section of the Voting Rights Act of 1965 in the case Shelby County v. Holder. The Act had originally provided that some places couldn’t change their election laws without checking in with the Federal Government first; this covered mostly former Confederate States but also included places in the North and West with a history of voting issues. By striking down the Act, SCOTUS removed the barriers to changes in elections laws in these jurisdictions, paving the way for states and localities to change laws on their own.
So let’s imagine this is Sesame Street, and you have a bunch of muppets that walk around and talk and count things and raise pigeons and whatever. Let’s also imagine that the states and jurisdictions across the country are all the dudes that live on Sesame Street, like, e.g., Big Bird is California and Grover is Rhode Island. And let’s imagine that open access to voting is represented by, say, cookies.
Most of these guys can be trusted to not binge eat and to maintain some level of self-control, except for one: the Cookie Monster. This guy can’t even be in the same room as a cookie without eating it, in the most messy and inefficient way possible. So you, being the Congress of Sesame Street, enact a law that says that everyone is allowed to make all their own cookie decisions except for anyone with a history of freaking the hell out around cookies, and then you point at Cookie Monster and make the “I’m watching you” face.
Over the years, the cookie supplies and cookie abuse rates on the Street improve, even with the Cookie Monster. Since the Cookie Monster has to ask for permission before he can go to town on cookies, his cookie intake is not as big of a problem as it would be otherwis. In the real world, voter turnout among minorities is up; as one example, in Mississippi the voter turnout among blacks went from 6% in 1964 to 59% in 1969.
Cookies are more available than ever, which is good, but there is a problem.
See, over the years, the Cookie Monster has gotten cranky. He doesn’t want to ask permission for cookies, since no one else has to ask. He says that the last few decades have shown that he can be trusted to maintain his own cookie intake. He hires a lawyer and files a lawsuit, saying it is fundamentally unfair that every other muppet on Sesame Street gets to make make their own cookie decisions, even when they screw ups sometimes, too (Ernie went on a mallomar binge in 2000, Snuffy had a Thin Mints problem for a while, etc.). Cookie Monster wants the same level of oversight that the others on the Street have.
So here are the two arguments: Pro-Cookie Monster people want Cookie Monster to be able to make his own decisions without clearing any cookie eatin’ with anyone ahead of time. Anti-Cookie Monster people say that Cookie Monster had only been able to restrain himself BECAUSE he has had oversight all these years, and that letting him off the leash will devastate cookie supplies for years to come.
The Supreme Court of Sesame Street convenes, which is composed of cranky, mean spirited types like Sam The Eagle, Statler and Waldorf, and Antonin Scalia, and they strike down the law. They do this because when the feds most recently decided what cookies Cookie Monster can eat, they used data based on Cookie Monster from 1974 instead of current cookie data. The Supreme Court of Sesame Street said that you can’t base new cookie laws on old cookie data, so Cookie Monster is now free to eat whatever cookies he wants.
Within hours of the ruling, the Cookie Monster ran out to a grocery store to and was seen leaving with about three cartloads of cookies.
So that’s the issue: should states with a history of racially discriminatory election laws (Cookie Monster) be free to change their election laws without leave of the feds? SCOTUS said that it is impermissible for Congress to use old data (from 1974) to justify which jurisdictions should be covered under the Voting Rights Act when it extended the law, which is most recently did in 2006.
To be fair, that is pretty lazy on the part of Congress. There are a number of jurisdictions in the US that have been plagued by long lines, irregular voting hours, and restrictive registration rules, and they encompass much more than just The Solid South. Voting irregularities happen everywhere, not just in the old Jim Crow states.
The biggest issue I have with the Court’s decision is one that Judge Ruth Bader Ginsburg wrote about in her dissent, which is that striking down the law because it is based on old data is like saying that any law based on faulty assumptions is unconstitutional. If THAT was true, 80% of the laws in the US Statutes would be unconstitutional (my words, not Ginsburg’s). Congress can’t use old data to justify modern laws? Then any use of any parts of the Old and New Testaments in debate would render a law invalid. Congress is allowed to make stupid laws, THAT’S WHAT THEY DO. They trot all kinds of crazy before Congress to influence their decisions. Twisted Sister once testified before Congress; is 1974 data more ridiculous than Dee Snyder? Being based on old data or faulty assumptions should not render a law unconstitutional, because Congress is the proper branch of the government to determine how dumb some pieces of data are.
In fact, the decision in Shelby County specifically said that Congress could pass another law if they choose to do so. So, the Voting Rights Act extension got struck down because Congress can’t be trusted to know what it’s doing, and the solution the Court offered is to trust Congress to know what its doing. Thanks, guys.
The other major issue with the Court’s reasoning is that the prevalence of 70% voter turnout in the African American population in some of the affected jurisdictions means we don’t need the Voting Rights Act. It could also be reasonably argued that the high turnout in some areas is due to the continued presence of the Act. Within a matter of hours after the Court struck down the VCA, Texas passed a new redistricting plan and a voter ID requirement. I would be shocked if minority turnout at the next Congressional and Presidential elections do not seriously drop. That would not be an unintended consequence of the Court’s decision in Shelby County; it will be the expected result. Several states will probably enact similar measures soon, in more regions than just the South.
I fear that when all is said and done we won’t just need to reenact the VRA; we’ll need to expand it. We may have a bigger, angrier Cookie Monster on our hands.