Some Thoughts on Shelby County v. Holder and the Roberts Court: Part II, The Sloppiness of John Roberts

In my last post I discussed why I think John Roberts is brilliant. This post will discuss why I think he is wrong, and often sloppily wrong.

Roberts' opinion today in Shelby County v. Holder held that the current formula for which jurisdictions are subject to pre-clearance of new election laws is an unconstitutional infringement on the sovereignty of the states because it is no longer necessary. Everything about this holding is wrong.

First, the law is still necessary. Justice Ginsburg, in her dissent, points to multiple instances in the last twenty years of discriminatory voting laws that were stopped by pre-clearance, including an instance where an election in Kilmichael, Mississippi was canceled when the all-white Board of Aldermen realized there were an unusually high number of black candidates running for office. Cancelled the election! 2001! Chief Justice Roberts cites relative parity in voter registration and turnout rates as his primary factual justification that pre-clearance is no longer necessary. But if white officials can preemptively cancel elections, what good is being registered to vote? In the wake of this morning's ruling, various news outlets have highlighted other instances showing racially motivated electoral laws are not a thing of the past. See Mother Jones, The Nation, The Atlantic and The New Republic.

Second, even if the law were not necessary, that is for Congress to decide. We are not dealing with a law that discriminates against individuals on the basis of race and is thus subject to strict scrutiny by the courts. Congress was given plenary power by the Fifteenth Amendment to the Constitution to enforce the provisions of that amendment. The Supreme Court should therefore defer to Congress on whether the law continues to be necessary.

What really gets me about this opinion though is the invocation of "state sovereignty." The evolution of "state sovereignty" in our founding documents has been to progressively reduce it. Why the new federalists on the Supreme Court have been trying to resuscitate this doctrine is beyond me. Here is a brief historical survey as to why no argument as to "state sovereignty" will ever convince me.

When the colonies declared their independence in 1776, it was assumed that each of the new states would retain their sovereignty within a loose confederation. This was codified by the Articles of Confederation. The Articles of Confederation did not work. They did not work because the central government, such that it was, had no real authority because actual authority resided in the states.

The Constitution of 1787 was crafted to reduce the power of the states. The federal government was given authority over, for example, interstate commerce. It contained a supremacy clause that made the Constitution and federal law superior to state law. The states retained significant authority, however. The Bill of Rights, for example, restricted the authority of the federal government, but not state governments.

The Constitution, as stated in the preamble, came directly from the people. It was created by a special convention and ratified by special conventions. It was not a compact between the states. States cannot withdraw from the Constitution because it is not a contract to which they are parties. We fought a civil war to settle this question once and for all.

In the wake of the Civil War the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution were adopted. These amendments restricted the sovereignty of state governments. States can no longer endorse slavery, apply the law unequally based on race, or deny the right to vote based on race because of these amendments. Prior to the Civil War, these actions were firmly encompassed with the sovereignty of the individual states. The fact that Congress did not exercise its enforcement authority to any great degree between the end of Reconstruction and the 1960s did not change the basic fact that the Civil War and the Civil War Amendments fundamentally altered the sovereignty balance in our federal system.

Reduction in state sovereignty did not end there, however. In 1913, the Seventeenth Amendment established the direct election of United States Senators. Prior to that, Senators were chosen by state legislatures. Senators thus went from being representatives of state legislatures to representatives of the people of a state. The Nineteenth, Twenty-Fourth and Twenty-Sixth Amendments all also reduced state sovereignty over elections.

In discussing state sovereignty, Supreme Court Justices rarely invoke any one provision of the Constitution. They tend to talk about the structure of the document as a whole. They have used this structure to create a  judicial gloss on the Constitution recognizing the dignity of the sovereign states. In his memoir, Justice Stevens called this the most pernicious development in his years on the bench.

The states do retain a role in our system, but they are not sovereign. The people, and only the people are sovereign. The people, through the Fifteenth Amendment to the United States Constitution have entrusted the United States Congress with ensuring that the right to vote is protected. The Supreme Court owes Congress deferential treatment in this arena. There is no legitimate state sovereignty claim to the contrary, no matter what five men in robes say.

The people are sovereign and each citizen is equally sovereign. Citizens exercise that sovereignty through the franchise. Statutes and judicial rulings that limit the ability to exercise the right to vote strike at the very heart of our system of government.