A voting station in Arlington, Virginia, on Tuesday, November 3, 2009. (AP Photo/Jacquelyn Martin)
This article originally appeared at MSNBC.com.
The Supreme Court’s decision on Tuesday in Shelby County, Alabama v. Holder, is devastating, but not definitive. This court has done significant damage to the most important piece of civil rights legislation in our modern history, but there is still hope to fight back and restore protective laws that ensure all eligible Americans can access the ballot.
First, the good news: This does not change who has a right to vote.
I have received panicked e-mails from friends asking if the right to vote for African-Americans is in jeopardy. Strictly speaking, it is not. The right to vote for men, regardless of race, is protected by the Fifteenth Amendment to the United States Constitution. Ratified in 1870, the Fifteenth Amendment states that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” Black women were added to constitutional citizenship through a combination of the Fifteenth Amendment and the Nineteenth Amendment, which prohibits disenfranchisement based on sex.
Today’s Supreme Court decision in Shelby v. Holder does not strip black men and women, or anyone else, of the right to vote. However, it does incalculable violence to the primary tool necessary to ensure that state governments honor these constitutional rights.
Now, some bad news: the history of our nation demonstrates that the constitutional right to vote is not enough to ensure that citizens can exercise this right.
Although the Fifteenth and Nineteenth Amendments forbade states from simply declaring African-Americans ineligible to vote, they did not protect black voters in practice. Throughout the Jim Crow era, Southern states innovated a menu of presumably race-neutral policies that effectively kept black Americans from voting. Grandfather clauses, poll taxes, literacy tests, all-white primaries, and intimidation at the polls were strategies enforced with state-sanctioned violence to effectively disenfranchise generations of black Americans.
It was the Voting Rights Act of 1965 that finally put a stop to these practices. It was Section 5 of that Act that has protected those gains for decades.
So here is the really bad news: Section 5 of the Voting Rights Act has been rendered moot, at least for now.
Before 10 am on Tuesday, Section 5 of the Voting Rights Act of 1965 provided that certain states and localities with a particularly egregious history of racial restrictions and racial violence around voting were required to “preclear” proposed changes in voting or election procedures through the Department of Justice. The provision covered many, but not all, of the states that had enacted the most vicious Jim Crow practices in the nearly 100 years leading up the the VRA’s passage. Section 4 of the Voting Rights Act determined which areas were covered by Section 5.