As the House of Representatives tries to pretend that its whistle-brained conservative majority cares enough about the Voting Rights Act to do anything except resist the temptation to dance on its grave, former Supreme Court Justice John Paul Stevens -- who, thank the Lord, is not taking retirement seriously -- has decided to box John Roberts's ears for him. For Justice Stevens, the day of jubilee has not yet arrived.

First, there's a bit of a history lesson.

Although he does not identify the withdrawal of federal troops in 1876 as the principal cause of the change, May notes that by 1877 "southern white Democrats had overthrown every new state government and established state constitutions that stripped black citizens of their political rights." Terrorist groups "like the Ku Klux Klan and the Knights of the White Camellia destroyed black schools and churches and murdered at will." State election laws that were enacted after 1877 were disastrous for black citizens. Whereas 130,000 blacks had been registered to vote in Louisiana in 1896, only 1,342 were registered to vote in 1904. In Alabama only 2 percent of eligible black adults were registered, and they risked serious reprisals if they attempted to exercise their right to vote. Black disenfranchisement, like segregation, was nearly complete throughout the South for well over sixty years. It was enforced not only by discriminatory laws, but also by official and unofficial uses of violence.

This, of course, was unfortunate. It is the contention of the Court's current majority that we have attained the day of jubilee, however, because the attempt to suppress the vote no longer involves the rope, the gun, or the torch. Things are so peaceable, Stevens notes, that Roberts had time to pull an entire constitutional theory from out of the ahistorical depths of his own hindquarters.

In view of the changes that have occurred in the South, the majority concluded that the current enforcement of the preclearance requirement against the few states identified in the statute violates an unwritten rule requiring Congress to treat all of the states as equal sovereigns. The Court's heavy reliance on the importance of a "fundamental principle of equalsovereignty among the States," while supported by language in an earlier opinion by Chief Justice Roberts, ignored the fact that Article I, Section 2 of the Constitution created a serious inequality among the states. That clause counted "three fifths" of a state's slaves for the purpose of measuring the size of its congressional delegation and its representation in the Electoral College. That provision was offensive because it treated African-Americans as though each of them was equal to only three fifths of a white person, but it was even more offensive because it increased the power of the southern states by counting three fifths of their slaves even though those slaves were not allowed to vote. The northern states would have been politically better off if the slave population had been simply omitted from the number used to measure the voting power of the slave states.

Again, ancient history now that we have attained the day of jubilee, right? Except that, well, no.

It is not, however, an increase in the number of Republican blacks that turned the South into a Republican stronghold-because today most blacks vote for Democratic candidates. Instead, the Republican Party in the South has become more attractive to white voters who include the heirs of the white supremacists who were Democrats during and after Reconstruction. The statistics set forth in Roberts's recent opinion persuasively explain why a neutral decision-maker could reasonably conclude that at long last the imposition of the preclearance requirement on the states that lost the Civil War-or more precisely continuing to use the formula that in 1965 identified those states-is not justified by the conditions that prevail today. The opinion fails, however, to explain why such a decision should be made by the members of the Supreme Court. The members of Congress, representing the millions of voters who elected them, are far more likely to evaluate correctly the risk that the interest in maintaining the supremacy of the white race still plays a significant role in the politics of those states. After all, that interest was responsible for creating the slave bonus when the Constitution was framed, and in motivating the violent behavior that denied blacks access to the polls in those states for decades prior to the enactment of the VRA . The several congressional decisions to preserve the preclearance requirement-including its 2006 decision-were preceded by thorough evidentiary hearings that have consistently disclosed more voting violations in those states than in other parts of the country. Those decisions have had the support of strong majority votes by members of both major political parties. Not only is Congress better able to evaluate the issue than the Court, but it is also the branch of government designated by the Fifteenth Amendment to make decisions of this kind.

Stevens also has no patience with the way Roberts two-stepped the decision by gutting Section IV of the VRA, thereby making Section V, the so-called "pre-clearance" requirement, unworkable. Stevens was on the Court too long to get fooled by such a clumsy bait-and-switch.

Instead of holding that it was unconstitutional to apply the preclearance requirement to Shelby County, the Court merely held that it was unconstitutional to use the formula in the 1965 Act to identify those jurisdictions that must have their proposed voting changes precleared. Presumably that narrower holding was intended to avoid the rule of judicial restraint that normally, in a so-called facial challenge, required the plaintiffs challenging the constitutionality of a federal statute to convince the Court that the statute is invalid under all circumstances. Thus, the Court sidestepped the problem that Alabama's past history would adequately support a continuing application of preclearance procedures to Shelby County by focusing only on the formula used to subject Shelby County to this requirement.

The Shelby County decision is the unholy waltzing partner of Citizens United in an ongoing attempt to truncate democracy. Where CU fastened onto our elections the deadweight of corporate money, SC gives every state the opportunity to restrict the franchise of most of the people who would be inclined to seek to throw off that deadweight at the ballot box. John Paul Stevens has been around. He knows a Gilded Age when he sees one coming.

Charles P. Pierce Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.

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