That said, yes, of course it was a bad decision. It's not going to take us back to Jim Crow, but what it does mean is that the new racists and vote suppressors, represented by groups such as True the Vote, will be empowered. Officials in Texas, North Carolina, and Mississippi have already expressed their satisfaction with the fact that they can now move forward with voting laws that section 5 was standing in the way of until yesterday. Voter ID laws with racially disparate effects can now move ahead. Less visible but perhaps more important are the developments likely to take place in small jurisdictions such as counties and cities. Instead of needing to clear the requirements of section 5 in advance, they can now implement a law and are only constrained by the ability of local people to bring a suit after the fact.
The net effect of these changes will be to make it harder for people to vote. It won't bring back "literacy" tests and poll taxes. But it is likely to only exacerbate the subtle discrimination in voting procedures that caused blacks to wait in line to vote, on average, about twice as long as whites in the last election. So, we're not in danger of going back to Jim Crow. If, somehow, the court were to eventually strike down section 2, then yes, we can appropriately talk about Jim Crow. But that's not going to happen. We're simply forging ahead into the latest iteration of American racism. It's not Jim Crow, but that doesn't make it acceptable.
I'm actually more disturbed by the conservative reaction to the ruling than by the decision itself. I have not yet seen a single conservative criticize the decision. They are making it abundantly clear that they oppose proactive federal efforts to protect Americans' rights. Indeed, the predominant line of argument conservatives are taking implies that they envision the eventual repeal of all civil rights laws. They are treating yesterday's decision as almost self-evident progress. The idea seems to be that since we've made so much progress against racism, civil rights laws are now ugly distortions in our otherwise colorblind corpus of law. Removing protections is thus not a step back, but a ratification of the progress we've made.
As always, context is the terrifying enemy of racial conservatives. So let's introduce them to some context. In the United States of 2013, minorities are racially profiled with impunity, arrested for drug crimes out of all proportion to their use of drugs, receive harsher average sentences for identical crimes, attend unequally funded schools, frequently attend segregated schools that are, according to the Brown decision, inherently unequal, live in neighborhoods of much higher average poverty than almost any whites are exposed to, bear the brunt of environmental pollution, face pervasive discrimination in hiring even when their qualifications are identical, are discriminated against by realtors and banks, and, you get the idea. We're not going to have a debate about these things; if you do not accept them you are not ready to have an honest discussion. The point is, given this state of affairs, the urgent priority is to identify what more we can do to tear down this racist edifice. Worrying about repealing old civil rights laws, even if they were no longer needed, would be pretty low on our list of priorities.
So what are conservatives thinking? One of the most common fallacies is to set the 1950s and 60s as a baseline. Conservatives are astonishingly indifferent to the question of what a society with no racial privilege might look like. They are content to merely ask if we have advanced from the baseline of murderous police state. And we have! With that proved, they rest their case. Don't believe me? Look at the National Review piece I referenced above. The title, and I'm not kidding, is: "Yes, Race Relations Have Improved Since 1965." You can see how that title is born of the kind of thinking I just described. Because otherwise you quickly realize that whether race relations have improved since 1965 is neither here nor there. Imagine a conservative saying we don't need the NRA anymore because crime is down and second amendment rights have been expanded. That's basically what they're saying here. And really, "race relations"? This is not about people getting along; this is about severing a 400 year old link between race, money, and power. The editors at National Review conclude like this:
Instead of gnashing our teeth and reliving old battles, we Americans should consider it a source of great pride that legal provisions contrived to ensure that the Jim Crow era was brought to a welcome close have finally outlived their necessity.By what and who's standard? As I've found in my thesis research, conservatives assured us that the VRA had outlived its usefulness when it came up for renewal in 1970! There really wasn't a gap between fighting against the law's passage and then turning around saying, "look, all better now!" Today, no one, not even Justice Roberts, has claimed that there is no discrimination in the covered jurisdictions. The idea is that it is much better than it used to be. And so it is! But that is an absurd basis for repealing a law. Imagine if we went around striking down everything that governs abuses that are no longer as egregious as they once were. Clean water act, gone. Child labor laws, gone.
The difference is that this section of the VRA only applied to part of the country. And the court simply decided that the disparate treatment of states was more grievous than the racial discrimination those states continue to practice. (Again, because Jim Crow is the baseline. We've made so much progress that current discrimination doesn't really count). The idea was that we're perpetually punishing these states for past sins. This misses a crucial fact. Before yesterday's ruling, areas that were subject to preclearance were allowed to get out from under that requirement and join the rest of the nation. All they had to do was demonstrate 10 years of compliance with the law. Thus the whole conservative narrative about how we're treating these states unfairly for eternity completely collapses. They were free to get out from under preclearance but they couldn't do it, precisely because of their ongoing discrimination. They couldn't demonstrate 10 years of compliance!
The Wall Street Journal editorial page provided another example of leading conservative opinion, and framed the ruling much as National Review did:
The U.S. has a long and difficult history with racial discrimination, but on Tuesday the Supreme Court marked a milestone worth celebrating when it ruled that a section of the 1965 Voting Rights Act has outlived its usefulness. The political left is reacting as if this means a return to Jim Crow, but the ruling is best understood as a sign of the racial progress that progressives claim to believe in...
Far from a civil-rights defeat, Tuesday's ruling is a triumph of racial progress and corrective politics. The Voting Rights Act was designed to eliminate barriers to minority voting, and it succeeded as well as any modern law. You'd think that liberals who claim to believe in human progress would recognize progress when it occurs, rather than assume that whatever is is right.It's the same framing. Because we've made so much progress (and we have) current context is irrelevant. For the record, I've always thought section 5 should apply nationwide. The north and west are and always have been extremely racist, and have added hypocrisy on top of it. But that's a story for another time. If there is a push to replace the coverage formula with a simple nationwide application you can bet many liberals will oppose it. Northern liberals have nearly always turned into defenders of white privilege when the issues hit home.