During last week's oral argument in Shelby County v. Holder -- the challenge to Section 5 of the Voting Rights Act -- Chief Justice Roberts questioned the Solicitor General concerning the rationality of the VRA's coverage formula (Section 4(b)) by comparing non-covered Massachusetts with Mississippi, which remains subject to federal preclearance based on registration and voting data from 1964. As the Chief Justice pointed out (page 32 of the transcript), Massachusetts has the “worst ratio of white voter turnout to African American voter turnout” while Mississippi “has the best.” Massachusetts likewise “has the greatest disparity in registration between white and African American” while Mississippi is third best in the nation, “where again the African American registration rate is higher than the white registration rate.”
The Chief Justice’s remarks apparently angered the Massachusetts Secretary of State. According to a Politico story, Secretary William Galvin found it “just disturbing that the chief justice of the United States would spew this kind of misinformation” and that the “2010 numbers don’t support what Roberts is saying.” Galvin continued: “He’s wrong, and in fact what’s truly disturbing is not just the doctrinaire way he presented by the assertion, but when we went searching for an data that could substantiate what he was saying, the only thing we could find was a census survey pulled from 2010 . . . which speaks of noncitizen blacks . . . . We reached out to academics at many institutions . . . and they could find no record either, they were puzzled by [Roberts’s] reference.”
But it’s Secretary Galvin who has his facts wrong—a mistake he could have avoided simply by reviewing the lower court decision that the Supreme Court is considering. In his dissenting opinion, D.C. Circuit Judge Stephen Williams examined the voter registration and voting statistics from the 2004 presidential election -- not the 2010 mid-term elections—because it was the last national election before Congress reenacted Section 5 in 2006. The question the Supreme Court is considering—which seems to be lost on Galvin -- is whether Congress acted appropriately in retaining the same coverage formula that has been in place since 1975 despite significant changes in the country. To answer that question, the Court must of course look at the statistics that were in the 2006 legislative record. And those statistics, which are publicly available and come directly from the Census Bureau, fully vindicate the Chief Justice’s statement.
Other media reports have criticized the Roberts’s reliance on these statistics by pointing to the margin of error in the Census data. But the margin of error works in both directions. While some may want to seize on the margin of error to suggest that the differences between Massachusetts and Mississippi aren’t as pronounced as the data suggests, it’s equally possible that the differences are even starker. In any event, the margin of error cannot wipe away the significant differences between these two states. Painting Massachusetts in the most favorable light within the margin of error, it would still have a white/black registration disparity of 13.2%, and painting Mississippi in the most unfavorable light, it would still have a white/black registration disparity of 3.9%. On the other end of the error-margin spectrum, however, Massachusetts’ disparity is as high as 36% (higher white registration) while Mississippi’s is as low as -11.5% (higher black registration) -- a massive 47.5% gulf between the two.
Using the 2010 data -- as Secretary Galvin prefers -- also doesn’t solve the problem. Again, painting Massachusetts in the most favorable light within the margin of error, it would still have a registration disparity of 21.3%, while Mississippi under the most unfavorable light within the margin of error would still have a disparity of only 6.9%. On the other end of the error-margin spectrum, Massachusetts’ disparity is as high as 44.7% (higher white registration), and Mississippi’s is as low as -8.5% (higher black registration) -- a 53.2% gulf. Put simply, there is no scenario in which Mississippi has a racial registration disparity that’s anywhere close to Massachusetts.
Moreover, this argument over the margin of error obscures the more important point: Mississippi is the state subject to intrusive federal oversight, not Massachusetts. Clever statistical arguments that Massachusetts might not be as far behind as Mississippi can’t save a law that depends on a showing that covered states are substantially worse than their non-covered counterparts. No matter how those defending the statute contort registration and turnout data, they can’t come anywhere close to showing the massive disparity in registration and turnout needed to uphold the law.
Finally, it’s worth noting that the Chief Justice actually went easier on Massachusetts than he could have. The Bay State’s record with regard to Hispanics is even worse than its record with regard to African-Americans. According to the 2004 Census, Massachusetts has a 54% registration gap between whites and Hispanics and several localities have been subject to suit under Section 203 of the Voting Rights Act for failing to provide language assistance to minority voters. That includes a 2006 claim brought by the (Bush) Justice Department against Springfield, alleging “that the city failed to provide an adequate pool of bilingual workers to serve its Spanish-speaking voters, and that its poll workers interfered with the ability of voters to receive assistance from the persons of their choice.”
Massachusetts also has seen an increase in Section 2 litigation. As NYU law professor Samuel Issacharoff -- no raving conservative -- testified before Congress in 2006, “[i]f you look at the history of recent Section 2 litigation under the Voting Rights Act, one sees Section 2 moving more and more to areas where you have recent immigrants coming into the country, and those tend to be as likely as not, as best I can tell, places that are not under covered jurisdictions, places like Lawrence, Massachusetts, some of the smaller towns of Pennsylvania.”
To be clear, I'm not suggesting that Massachusetts is a hotbed of racism and should be subject to Section 5. Instead, I'm saying that Mississippi -- the whole broader South -- has changed, obviating the need, and therefore constitutional justification, for Section 5.