Yesterday morning, by a vote of five to four, the U.S. Supreme Court ruled that Congress could no longer rely on data of state racial discrimination affecting voting rights which had been assembled in the 1960's and 1970's to justify the preclearance requirement of the Voting Rights Act.  Under the preclearance provision (section 4) struck down by the Court, some States and their political subdivisions had been required since 1965 to obtain approval by specified federal authorities in Washington, D.C. before any change in their voting laws can take effect.

The opinion in Shelby County, Alabama v. Holder was written by Justice Roberts.  Justice Thomas wrote aconcurring opinion.  A dissent was filed by Justice Ginsburg, with Justices Breyer, Sotomayor, and Kagan. 

While the Court ruled that section 4 of the Voting Rights Act was unconstitutional, this decision was anything but a principled victory, and, indeed, has opened the door to further legislation that could be every bit as bad, if not worse, than the section 4 which it struck down.

In the very first paragraph of the majority opinion, Chief Justice Roberts acknowledged the extraordinary nature of two provisions of the Voting Rights Act.  Section 5 of the Act requiring "States to obtain federal permission before enacting any law related to voting [is] a drastic departure from basic principles of federalism...."  And, Section 4 of the Act "appl[ying] that requirement only to some States - [is] an equally dramatic departure from the principle that all States enjoy equal sovereignty." 

However extraordinary and unprecedented these two sections were viewed, the Court refused to rule that either section was unconstitutional for that reason. 

Rather, the Court decided that the Section 4 formula governing whether a particular State or political subdivision was required to get Section 5 permission was unconstitutional solely because it was based upon outdated voting discrimination data. 

On two occasions Justice Roberts cited with apparent approval some of the most lawless words ever written by the Supreme Court -- words contained in Justice Warren's opinion approving the original Voting Rights Act of 1965:  "exceptional conditions can justify legislative measures not otherwise appropriate."  South Carolina v. Katzenbach, 393 U.S. 301, 309 (1966).

In so ruling, the Court left the door open for Congress to assemble new data to enact into law a new formula whereby some States and their political subdivisions would be singled out for federal preclearance before they would be permitted to make any election law change.  And what might that new formula be? 

According to Section 5, left intact by the Court, the 1965 Act, as amended, prohibits:  (i) any voting procedure that has "any discriminatory purpose" -- not just one that worsens one's exercise of the voting privilege, or (ii) any voting change that diminishes the ability of citizens on account of race, or language minority status "to elect their preferred candidates of choice."  Neither outcome based test was ever envisioned by the Fifteenth Amendment.

The Court invited Congress to replace section 4 with a new and improved version.  Indeed, Chief Justice Roberts wrote: 

"Congress may draft another formula based on current conditions.  Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an 'extraordinary departure from the traditional course of relations between the States and the Federal Government.'" 

How refreshing to know that a State's sovereignty cannot be overridden by the federal government -- unless Congress and the President have an important reason to do so.

According to the Court's decision, then, neither the principle of state sovereignty, nor the principle of state equality, preserved not only by the Tenth Amendment and by the nation's federal structure dating back to the Declaration of Independence, stands in the way of an affirmative action by Congress that would single out those states that fail to elect to office minority group candidates sufficiently proportionate to their numbers in the population.

Thus, the Shelby County Court opinion frees Congress to amend the 1965 Act to impose new burdens on a new group of States and their political subdivisions -- or on all states -- just so long as Congress justifies the imposition of new burdens to meet current needs.

In our Shelby County amicus brief, we advocated a legal system that treats each man as man, no more and no less.  We urged the Court to strike down not only Section 4 of the 1965 Act, but Section 5 -- to close the door to special privileges based upon race -- minority, majority, or otherwise.  The Court rejected that invitation. 

In his concurring opinion, Justice Clarence Thomas claimed that the same reasons that justified the Court to strike down the outmoded formula of Section 4, would justify striking down Section 5 as well.  However, until the Court returns to the rule of law -- fixed as to time, uniform as to person, and universal as to place -- we will continue to be ruled by judges whose opinions change with changing times.

Postscript:  To put this case into the context of how the current Court views constitutional principles, just the day before the Court handed down Shelby County, the Court decided Fisher v. University of Texas at Austin.  In Fisher the Court refused to adopt the principle of racial equality in the admission of students to the University, permitting race to be used as a factor in the admitting process if it did so in pursuance of a compelling interest to carry out a policy of educational diversity.  Thus, once again the Court sidestepped our constitutional commitment in the nation's charter and in the Fourteenth Amendment to the principle of human equality regardless of race or color, and preserved the right of every justice to decide each case as he pleases, without meaningful constitutional constraint, doing what each believes to be right in his own eyes.

Herb Titus taught constitutional law for 26 years, concluding his academic career as founding dean of Regent Law School.  Bill Olson served in three positions in the Reagan administration.  They now practice constitutional law together, defending against government excess, at William J. Olson, P.C.  They filed an amicus curiae brief in the Shelby County case.  They can be reached at wjo@mindspring.com or twitter.com/OlsonLaw