Editor’s Note: Eric B. Schnurer, a former civil rights lawyer and associate federal special prosecutor, was president of the Drum Major Institute, a policy center originally founded by Martin Luther King Jr. The views expressed in this commentary are his own. View more opinion on CNN.
“When the facts change, I change my mind. What do you do?” the renowned economist John Maynard Keynes was often quoted as asking. This is a question we ought to be asking of Chief Justice John Roberts and Congress in the wake of the 2018 elections – most notably in Georgia.
The Supreme Court decision in Shelby County v. Holder (2013), gutting enforcement of the 1965 federal Voting Rights Act, or VRA, elevated Keynes’ supposed dictum to the level of constitutional mandate. The court ruled that the provisions of the VRA, requiring states with histories of voting rights violations to submit themselves to federal preapproval of any changes in voting procedures or electoral rules, were deemed unconstitutional because of changes in the underlying facts.
In Roberts’ telling, interference with African-American voting rights in the South was ancient history, successfully swept away by the VRA itself, not to mention a New South where torch-lit Klu Klux Klan marches with Confederate battle flags were things of the past. When the facts change, Roberts asserted, the court must change its mind as to a law’s constitutionality.
If Roberts and the court’s majority mean what they say, then they need to change their minds again after last week’s developments.
Never mind that, in the decade preceding the court’s Shelby County decision, Georgia had continued adopting voting changes that the US Department of Justice found discriminatory roughly once every three months.
Since then, Georgia has pursued voting restrictions disproportionately affecting African-Americans and other minorities with renewed vigor: It closed 214 polling places, for example. Then-Secretary of State Brian Kemp took the lead on aggressive voting-reduction efforts, purging the voting rolls of over 1 million primarily minority voters and instituting an “exact match” requirement that removed voters for any clerical errors or misspellings.
When this policy was struck down by the federal courts, it was essentially just re-enacted by the Georgia Legislature at Kemp’s urging. (The Brennan Center for Justice, for example, has found that both reduced numbers of voting machines and increased voter purges disproportionately affect minority voters.)
Kemp even expressed “concern” to donors at a private dinner earlier this year that Democrats would defeat him “especially if everybody uses and exercises their right to vote.” No wonder: His African-American opponent, Stacey Abrams, had launched her career by organizing people to vote.
Not surprisingly, then, Kemp – still overseeing the voting in his own election – threw out or held up thousands of absentee ballot applications, a majority of which turned out to be from African-Americans, until ordered to cease and desist by the federal courts.
That didn’t stop a record shortage of voting machines in black precincts on Election Day, or – and this is really the most eye-rolling of all – what machines there were from running out of battery power in the middle of voting. Even by such means, Kemp (as of this writing) was barely able to cling to a narrow majority.
The larger point is that none of this occurs in a vacuum. As everyone knows, Georgia and other states have a long history of racial oppression – but just because it’s long doesn’t mean that it’s dead.
After the Civil War, Congress enacted several constitutional amendments that outlawed slavery (the 13th), established due process and equal protection under the laws for all Americans (the 14th) and prohibited racial discrimination against the right to vote (the 15th).
These amendments, in more-or-less identical language, expressly grant Congress the “power to enforce this article by appropriate legislation.” Under that authority, Congress had reauthorized the VRA’s preclearance provision, and the formula for determining those states and localities to which it applied, as recently as 2006 – only seven years before Roberts found it terribly outdated.
Roberts’ approach ignores – in fact, rejects – the continuing relevance of the Civil War and the history of the Confederate States in construing those Civil War Amendment guarantees. Whatever the real-world relevance of Confederate history to US today, its relevance to the Constitution – and, particularly, the Civil War Amendments – is central: It was the sole animating reason for the three amendments that dramatically reshaped federal authority over the states. That history matters.
Listen, for instance, to those defending President Donald Trump’s position opposing birthright citizenship: They assert that these amendments were concerned entirely with the former Confederate states’ treatment of African-Americans, not our current conditions (and, hence, not intended to protect undocumented immigrants).
In short, conservatives and self-styled “originalists” ought to be (and usually are) the first to agree that historic rather than current conditions should dictate Congress’ scope of action. As such, the mechanism to sweep away any constitutional deadwood isn’t court fiat – it’s an amendment.
But let’s assume that Roberts was correct – and intends to be consistent – that the Constitution requires keeping pace with today’s realities. The more important issue in the Shelby County decision, then, is the contention by Roberts and the court’s majority that the facts had changed and so, too, had the VRA’s constitutionality.
Get our free weekly newsletter
Perhaps the chief justice was correct that, by 2013, the VRA’s concerns with racial discrimination in voting had been rendered anachronistic by its own success. As Justice Ruth Bader Ginsburg trenchantly observed in her dissent, however, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” It’s now also clear, to continue Ginsburg’s metaphor, that putting your umbrella away when it’s not raining, as Roberts would have it, is usually sufficient itself to provoke a cloudburst.
And so it has. Since the Shelby County decision, increased restrictions on voting have been enacted in many states where Republicans reign. But nowhere have attempts to shut down the black vote been as widespread – and the result as transparent – as in Georgia.
Only someone willfully blind to all this would fail to see that exactly the same behaviors have rearisen in exactly the same places as before. The Roberts Court majority – or, if it turns out to be so utterly disingenuous, then Congress itself – needs to revisit Shelby County today and reinstate the VRA in the form Congress enacted it. After all, the facts have clearly changed back to, well, what they always really were.