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What the Supreme Court Doesn’t Understand About the Voting Rights Act | The Nation

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Ari Berman

Ari Berman

 On American politics and policy.

What the Supreme Court Doesn’t Understand About the Voting Rights Act


Women vote in the US presidential election in Los Angeles, November 4, 2008. (Reuters/Lucy Nicholson)

No sooner had the Voting Rights Act passed in 1965, after two hundred years of slavery and nearly 100 years of Jim Crow, than Southern conservatives, who failed to stop the law, began to attack it. South Carolina mounted the first constitutional challenge to the law only a month after it was enacted. President Nixon tried to weaken the law take the “monkey…off the backs off the South,” as did Presidents Ford in 1975 and Reagan in 1982. Every effort to gut the VRA failed. Each time the law’s constitutionality was challenged, in 1966, 1973, 1980 and 1999, the Supreme Court upheld the act. Every congressional reauthorization, in 1970, 1975, 1982 and 2006, made the law stronger, not weaker, in protecting voting rights. Each Congressional reauthorization was signed by a Republican president, cementing the bipartisan consensus supporting the VRA. “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 Ginsburg wrote in her dissent today.

That consensus held until now, with the Roberts Court finding that Section 4 of the Voting Rights Act is unconstitutional. Section 4 is how states are covered under Section 5 of the Voting Rights Act, the provision which requires states with the worst history of voting discrimination—those who had a discriminatory voting device on the books and voter turnout of less than 50 percent in the 1964 election—to preclear their voting changes with the federal government. Without Section 4, there’s no Section 5. The most effective provision of the country’s most effective civil rights law is now dead until and unless Congress figures out a new way to cover states where voting discrimination is most prevalent that satisfies the Roberts Court.

Explained the Chief Justice, who has been trying to weaken the VRA ever since he was a young lawyer in the Reagan Justice Department: “Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act, ‘[v]oter turnout and registration rates’ in covered jurisdictions ‘now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.’ The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased Section 5’s restrictions or narrowed the scope of Section 4’s coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger…. In 1965, the States could be divided into those with a recent history of voting tests and low voter registration and turnout and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”

Congress, which reauthorized the VRA by a vote of 390-33 in the House and 98-0 in the Senate in 2006, “cannot justify the considerable burdens created by Section 5,” the Chief Justice wrote. The Court’s message to Congress: drop dead. “In the Court’s view, the very success of Section 5 of the Voting Rights Act demands its dormancy,” wrote Justice Ginsburg in her powerful dissent. “Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated. The question this case presents is who decides whether, as currently operative, Section 5 remains justifiable, this Court, or a Congress charged with the obligation to enforce the post–Civil War Amendments ‘by appropriate legislation.’ With overwhelming support in both Houses, Congress concluded that, for two prime reasons, Section 5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation.”

There’s a particular irony to the Court killing Section 5 just months after a presidential election in which voter suppression attempts played a starring role. Congress was prescient when it reauthorized the VRA in 2006 for another twenty-five years. Thirty-one discriminatory voting laws have been blocked by Section 5 since that time. Six of nine states fully covered by Section 5, all in the South, passed new voting restrictions since the 2010 election, when GOP state legislatures approved a wave of voter suppression laws unseen since before 1965. In 2008, Shelby County, Alabama, the plaintiff challenging the VRA, was found guilty of the very type of voter discrimination the VRA was meant to address, after trying to eliminate the only black city council district in the city of Calera. The law’s coverage formula, though dated, is still surprisingly accurate. Law professors Christopher Elmendorf and Douglas Spencer surveyed data on racial stereotypes from the 2008 election and found that “Section 5…is remarkably well tailored to the geography of anti-black prejudice.” If anything, Section 5 should be expanded to encompass the wide scope of twenty-first-century voting discrimination, not narrowed or eliminated.

Today’s opinion by the Roberts Court was the most radical since Citizens United v. FEC and the worst voting rights decision in a century, since the Court upheld poll taxes and literacy tests in Giles v. Harris in 1903. “The Court’s opinion can hardly be described as an exemplar of restrained and moderate decisionmaking,” wrote Ginsburg. “Quite the opposite. Hubris is a fit word for today’s demolition of the VRA.” Just as the Citizens United decision led to an explosion of unregulated dark money spending in US elections, so too will the loss of Section 5 encourage many more of the shadowy voter suppression attempts that we saw in 2012.

What will that mean in practice? Texas’ voter ID law, which was blocked under Section 5 by a federal court last year and could disenfranchise up to 800,000 registered voters without government-issued photo ID, will immediately go into effect. The states of the Old Confederacy will return to the pre-1965 playbook, passing new voter suppression laws that can only be challenged, after years of lengthy litigation, in often-hostile Southern courts, with the burden of proof on those subject to discrimination, rather than those doing the discriminating. Conservatives will be emboldened to challenge the parts of the VRA, like Section 2, that apply nationwide.

“The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective,” wrote Justice Ginsburg. “The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. With that belief, and the argument derived from it, history repeats itself. The same assumption—that the problem could be solved when particular methods of voting discrimination are identified and eliminated—was indulged and proved wrong repeatedly prior to the VRA’s enactment. Unlike prior statutes, which singled out particular tests or devices, the VRA is grounded in Congress’ recognition of the ‘variety and persistence’ measures designed to impair minority voting rights. In truth, the evolution of voting discrimination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclearance remains vital to protect minority voting rights and prevent backsliding.”

There will be no easy fix in Congress. The body looked at updating how states were covered in Section 5, but no one could come up with a better answer than the draftees of the VRA in 1965. Changing the places covered by Section 5 would have blown up the entire bill. There was no political will or necessity to expand Section 5 nationwide, and “no objective statistical criteria could have added the most recent bad actors (Ohio and Florida) to the list of currently covered jurisdictions,” wrote Nate Persily, a law professor at Columbia University. “The fact that Section 5 was geographically targeted has always been seen as one of its constitutional saving graces.” Georgia Representative Charlie Norwood offered an amendment that would have exempted the entire Deep South and covered only Hawaii, a state with no history of racial discrimination in voting. The amendment was defeated 318 to 96.

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Asking this current Congress, which can hardly do more than name post offices, to revamp the VRA is a very steep task. Representative Steny Hoyer, the number-two ranking Democrat in the House, was pessimistic when I asked him recently what Congress would do if the Court overturned Section 5. “I think right now it would be difficult, because I don’t think, frankly, that the Republican majority in the House would allow it on the floor,” Hoyer said. “And I don’t think the Republican minority in the Senate would refrain from filibustering it. So I don’t think there would be much opportunity for legislative response unless the Democrats take control of the House, in which case there clearly would be a legislative response.”

The VRA hasn’t changed, but the Republican Party has. Today’s 5-4 decision by the Roberts Court gutting the VRA was the result of three factors, as I wrote in February: “a whiter, more Southern, more conservative GOP that has responded to demographic change by trying to suppress an increasingly diverse electorate; a twenty-five-year effort to gut the VRA by conservative intellectuals, who in recent years have received millions of dollars from top right-wing funders, including Charles Koch; and a reactionary Supreme Court that does not support remedies to racial discrimination.” Will the same Republicans who voted overwhelmingly for the VRA’s reauthorization in 2006 do so again? Will a new crop of Tea Party Republicans, such as Ted Cruz and Rand Paul, even allow it?

But the Court’s decision today could also spark a major backlash among minority voters, like the failed voter suppression attempts of 2012 that resulted in black turnout surpassing white turnout for the first time in US history. Just as the VRA’s passage led to counter-mobilization drives led by the likes of George Wallace, who registered to vote hundreds of thousands of conservative white voters in the 1960s, so too could the loss of Section 5 motivate a new wave of minority voting activism. “I absolutely believe that Americans will be even more embolden to hold every elected official accountable on protecting and expanding voting rights,” says Jotaka Eaddy, director of voting rights at the NAACP. “If Congress fails to act it will trigger a very [strong] response from the electorate.”

UPDATE: Congressman John Lewis, whom I profiled recently in The Nation and who almost died to win passage of the VRA in 1965, released this statement following the decision:

Today, the Supreme Court stuck a dagger into the heart of the Voting Rights Act of 1965, one of the most effective pieces of legislation Congress has passed in the last 50 years.

These men never stood in unmovable lines. They were never denied the right to participate in the democratic process. They were never beaten, jailed, run off their farms or fired from their jobs. No one they knew died simply trying to register to vote. They are not the victims of gerrymandering or contemporary unjust schemes to maneuver them out of their constitutional rights.

I remember in the 1960s when people of color were the majority in the small town of Tuskegee, Alabama. To insure that a black person would not be elected, the state gerrymandered Tuskegee Institute and the black sections of town so they fell outside the city limits. This reminds me too much of a case that occurred in Randolph County in my own state of Georgia, when the first black man was elected to the board of education in 2002. The county legislature changed his district so he would not be re-elected.

I disagree with the court that the history of discrimination is somehow irrelevant today. The record clearly demonstrates numerous attempts to impede voting rights still exist, and it does not matter that those attempts are not as “pervasive, widespread or rampant” as they were in 1965. One instance of discrimination is too much in a democracy.

As Justice Ginsberg mentioned, it took a Bloody Sunday for Congress to finally decide to fix on-going, institutionalized discrimination that occurred for 100 years after the rights of freed slaves were nullified at the end of the Civil War. I am deeply concerned that Congress will not have the will to fix what the Supreme Court has broken. I call upon the members of this body to do what is right to insure free and fair access to the ballot box in this country.

What is at stake now that the Supreme Court gutted the VRA? Look at Texas.

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