(AP Photo/Evan Vucci)
Hank Sanders grew up in segregated, rural southern Alabama and in 1971 moved to Selma—the birthplace of the Voting Rights Act. Before the VRA, only 393 of the 15,000 black voting-age residents in Dallas County, where Selma is located, were registered to vote. Less than a year later, after federal registrars arrived in August 1965, more than 10,000 black voters had been added to the rolls. Sanders experienced firsthand how the VRA transformed Selma and the rest of the country. In 1983, he became the first African-American state senator from the Alabama Black Belt since Reconstruction, representing a new majority-black district created by the VRA.
Thirty years later, Sanders watched in disbelief this June as the Supreme Court overturned the centerpiece of the VRA in Shelby County v. Holder. “It’s the most destructive Supreme Court decision in my lifetime,” Sanders said. “It reverses the very foundation of all the progress that we have made.” Reactions in Selma, he said, “ranged from shock to resignation.”
The Court’s conservative majority struck down Section 4 of the law, which determines how states are covered under Section 5—the vital provision that requires states with the worst history of racial discrimination in voting, dating back to the 1960s and ’70s, to clear electoral changes with the federal government. Without Section 4, there’s no Section 5. The most effective provision of the country’s most important civil rights law is now a ghost unless Congress resurrects it.
“We have no power under the Constitution to invalidate this democratically adopted legislation,” Justice Antonin Scalia wrote in his dissent on the Defense of Marriage Act. Yet that reasoning didn’t stop Scalia and Chief Justice John Roberts from gutting the VRA, which has been overwhelmingly reauthorized four times by Congress (1970, 1975, 1982, 2006) and signed by four Republican presidents (Nixon, Ford, Reagan, Bush). “The Voting Rights Act became one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history,” Justice Ruth Bader Ginsburg wrote in her fiery dissent.
The Roberts majority struck down Section 4 for violating the “‘fundamental principle of equal sovereignty’ among the States,” an argument with roots in Southern segregationist opposition to Reconstruction. (In a biting rebuke, Judge Richard Posner, the pre-eminent legal theorist at the University of Chicago, wrote that “there is no such principle” of constitutional law and that “the opinion rests on air.”) The Roberts decision ignored 250 years of slavery in America, nearly 100 years of Jim Crow and fifty years of persistent attempts to subvert the VRA. The Justice Department blocked 1,116 discriminatory voting changes from taking effect under Section 5 from 1965 to 2004 and objected to thirty-seven electoral proposals after Congress reauthorized the law in 2006. “The Supreme Court didn’t recognize the degree to which voter suppression is still a problem around the country,” President Obama, visiting Senegal, said following the decision.
Freed from Section 5, the states of the Old Confederacy will dust off the pre-1965 playbook, passing onerous new voting restrictions that can be challenged only through a preliminary injunction or after years of lengthy litigation, often in hostile Southern courts, with the burden of proof now on those facing discrimination rather than on those who discriminate. “Without Section 5, all kinds of things will be passed to limit the right to vote,” says Sanders. “I can’t anticipate all the creativity we will run into.” Immediately after the decision, five Southern states—Alabama, Mississippi, South Carolina, Texas and Virginia—rushed to implement new voter-ID laws that disproportionately affect young and minority voters. Voting changes found to be discriminatory by a federal court last year—like the Texas voter-ID law—will go into effect. (“Eric Holder can no longer deny #VoterID in #Texas,” Texas Attorney General Greg Abbott tweeted the morning of the decision.) Beyond voter ID, states like North Carolina are close to drastically cutting early voting and eliminating same-day registration. According to the Advancement Project, a Washington civil rights organization, “Eleven out of the 15 states covered by Section 5 enacted, or are pursuing, restrictive voting laws this year.”