Analysis of Shelby County v. Holder has focused largely on a 5-4 holding overturning the Section 4 formula that determines jurisdictions to be governed by VRA, and thus causes the preclearance provisions of Section 5 to go dormant--at least until Congress arrives at a new formula.
Mostly overlooked is Shelby County's frequent use of racially charged language in its petition for certiorari review to the Supreme Court. The petition references "state sovereignty" and similar phases--and those are slightly more polite terms for "states' rights."
States' rights, of course, was the mantra that George Wallace used to wage war against federal intervention in the segregationist South of the 1960s. It also was a central part of Ronald Reagan's speech at Philadelphia, Mississippi, to kick off his presidential campaign in the general election of 1980.
Wallace and Reagan were not stupid. They knew that "states' rights" was code language that told white voters, "Don't worry about the rising tide of civil rights for black people. We will look out for your interests. We will protect you."
As we fast forward to today, this week's decision already has had an impact on a pending Voting Rights Act lawsuit brought by residents of Macon County, Alabama, against Attorney General Luther Strange and Governor Robert Bentley. The case grew from raids and closure of the electronic-bingo facility at the VictoryLand casino near Shorter. Tuskegee Mayor Johnny Ford and other plaintiffs contend the raids unlawfully usurped the authority of the Macon County sheriff and heaped "economic devastation" on their county.
Donald LaRoche, a Massachusetts-based attorney representing the residents, said the Shelby County decision makes his job more difficult. "This decision is only going to enable the Luther Stranges of the nation to hide their racist schemes better," LaRoche said. "We still have a valid section 2 claim, and now it's going to take a little longer to prove."
Back to the two words--"states' rights"--that have done more than any others to turn the Deep South into a solid sea of red for the Republican Party on national-election days. Those words fueled white fears and knee-jerk voting, leading to the kind of extremism that makes Congress dysfunctional and our country almost ungovernable.
Should citizens be alarmed that Shelby County, Alabama, borrows tactics from George Wallace to help break down federal protections for minority voters? Is this burgeoning, overwhelmingly Republican area south of Birmingham the kind of place that needs to be helping to set a national agenda? Does Shelby County, with a justice infrastructure that is demonstrably corrupt, have any business messing with federal issues--especially when its own courthouse, county commission, and sheriff's office are riddled with sleaze?
The answers to those questions are "yes," "no," and "hell, no."
What are some of the code words in the certiorari petition for Shelby County v. Holder? Consider this language:
Placing a jurisdiction in federal receivership raises fundamental questions of state sovereignty; and doing so selectively, absent compelling justification, unconstitutionally departs from the “historic tradition that all the States enjoy ‘equal sovereignty.’”
And consider this:
These federalism concerns are not academic. The preclearance regime has an outsized effect on the basic operation of state and local government.
That is right from the George Wallace playbook, when he declared in 1967 that the people of Alabama "have the right to decide some questions for themselves." (See video at the end of this post.)
What about Ronald Reagan's words in 1980 at the Neshoba (MS) County Fair, which was chosen to host the speech as the perfect place for winning "the George Wallace-inclined voters"? Here is a key section from a transcript of the speech:
I believe in state's rights; I believe in people doing as much as they can for themselves at the community level and at the private level. And I believe that we've distorted the balance of our government today by giving powers that were never intended in the constitution to that federal establishment. And if I do get the job I'm looking for, I'm going to devote myself to trying to reorder those priorities and to restore to the states and local communities those functions which properly belong there.
I'm not the first to note the states' rights argument at the core of Shelby County v. Holder. Stephen Menendian, assistant director at the University of California's Haas Institute for a Fair and Inclusive Society, noted it in an article titled "Shelby County v. Holder: What's States' Right Got To Do With It?" From Menendian's piece:
Indeed, what is so puzzling about this notion of salience of the states’ rights discourse in this case is how concerns rooted in state sovereignty fly in the face of the obvious purposes of the Reconstruction Amendments. The Reconstruction Amendments were specifically passed to abrogate states’ rights and constrain state behavior after long experience in which black Americans were systematically subjugated by those states. Moreover, even if Tenth Amendment federalism concerns were constitutionally relevant, they would be superseded in this case by the Fourteenth Amendment, which was passed later in time.
Shelby County v. Holder not only brings into focus the issue of the proper scope of Congressional power under the Fourteenth Amendment, it also seeks to examine how to balance that authority against states’ rights. Given the language, text and history of the Fourteenth Amendment, the issue of states’ rights in this context is irrelevant. Unfortunately, this Court seems to believe otherwise.
Menendian obviously saw Tuesday's ruling coming. And he is absolutely right that places like Shelby County, Alabama--with the help of the U.S. Supreme Court--are chipping away at protections of the Fourteenth Amendment.
Shelby County v. Holder, in essence, turns us back toward a time when George Wallace held sway on the national stage. That should send a chill down the spine of all thinking Americans.