Joel Heller has posted this draft on SSRN (forthcoming, University of Memphis Law Review). Here is the abstract:
In Shelby County v. Holder, the Supreme Court largely ignored history. Striking down a central provision of the Voting Rights Act of 1965 (“VRA”), the Court suggested that the past was a minimal, and perhaps irrelevant, consideration in determining whether federal oversight of state election laws was necessary. The Court held that VRA’s use of voting policies and turnout rates from the 1960s and 1970s to select jurisdictions for such oversight was irrational, because such information reflected only “decades-old problems” and had “no logical relation to the present day.” Yet the past influences the present; history and memory affect current-day actions and attitudes, and, when that history includes voting discrimination on account of race, can do so in ways inimical to the right to vote. The Court is correct, of course, that “history did not end in 1965,” but it did not begin then, either.
In explaining that history is not a “current condition,” the Court did not acknowledge that the influence of the past is a distinct phenomenon from the past itself; even if the latter no longer merits a congressional response, the former still might. The Court’s failure to recognize the power of the past and the burden of memory likewise resulted in an incomplete analysis of the continued necessity, and thus the continued constitutionality, of the federal-oversight provision. Downplaying the relevance of history as a probative metric for evaluating the need for remedial voting-rights legislation, the Court ignored part of the work that the VRA was doing in the present. By considering the past, the invalidated provision of the VRA operated to address the problematical influence of history; it was a past-focused solution to a past-centered problem. This Article explores the power of the past in jurisdictions with a history of discrimination, explains why the VRA’s role in relation to this phenomenon justifies its continued existence, and posits how Congress can respond to the Court’s decision in a way that recognizes this important role.