Why Chief Justice Roberts’ Voting Rights Act Math Doesn’t Add Up

The US Supreme Court seems poised to invalidate a key section of the Voting Rights Act after last week’s hostile oral argument. Conservative justices insisted that special protections for minority voters in historically discriminatory districts are now obsolete. While Justice Antonin Scalia brashly attacked the law as “a perpetuation of racial entitlement,” Chief Justice John Roberts attempted a more measured statistical argument. Roberts claimed that Section 5’s focus on southern states was outdated because Mississippi has the highest black voter turnout, while Massachusetts has the lowest.

Statistics guru Nate Silver dismantled Roberts’ argument in his New York Times column today, pointing out that Roberts cherry-picked two states outside the norm:

In fact, it would be dangerous to infer very much from Massachusetts and Mississippi. In 2004, for instance, while Mississippi was reported to have strong black turnout, black turnout was poor in Arizona and Virginia, which are also covered by Section 5.

Silver examined data in states covered by Section 5 versus states not covered by Section 5, finding little difference in black voter turnout:

However, Silver argues, Roberts’ reasoning that the improved minority turnout in covered states means the Voting Rights Act is no longer necessary is flawed. It may well be that the Voting Rights Act is responsible for correcting the huge regional disparity in voter turnout in 1964. Therefore, Roberts’ examples of Massachusetts and Mississippi turnout say little about the actual effects of the VRA.

Meanwhile, several covered states have vote-suppressing legislation waiting in the wings for the invalidation of Section 5. Arizona Republicans are pushing legislation to ban anyone working on behalf of a political organization from bringing sealed mailed ballots to a polling place — a hugely successful get out the vote initiative used in 2012 for Latinos in Phoenix. Virginia just passed a restrictive voter ID law nearly identical to the Texas voter ID law struck down last year for harming minority voting rights. Texas is also waiting to enact a redistricting plan tossed out by federal judges for the map’s “substantial surgery” to dilute predominantly black districts. Without Section 5, all these laws would be allowed to go into effect, with clear implications for minority turnout.