One of the martyrs of the civil-rights movement, Vernon Dahmer, lies in a cemetery in Hattiesburg, Mississippi. A voting-rights activist and president of the local NAACP chapter, Dahmer was killed when his home was firebombed by Klansmen five months after President Lyndon B. Johnson signed the Voting Rights Act (VRA) into law. Dahmer’s tombstone bears his famous words: “If you don’t vote, you don’t count.”
Like every step along the path to racial justice, including the recent removal of the Confederate flag from South Carolina’s state Capitol, the VRA was bought and paid for with blood. Those who fought for it, like Dahmer, understood that it meant a new beginning for democracy, not an end of the need for vigilance.
That need gained fresh urgency in 2013, when the Supreme Court struck down a key provision of the VRA in Shelby County v. Holder. When the act was passed, its original intent was to eliminate discriminatory practices like literacy tests and poll taxes that had been erected to deny the franchise to black voters. Section 5 required jurisdictions with a history of racial discrimination to clear any changes in voting practices and procedures with either the Justice Department or a federal court in Washington, DC. Under the VRA, America began the arduous task of remaking the mechanisms of political participation by rooting out practices with the purpose or effect of disempowering members of minority groups on the basis of race.
Unlike other parts of the VRA—most notably Section 2, which prohibits states and political subdivisions from engaging in discrimination in electoral politics and provides an after-the-fact legal remedy—Section 5 provided prophylactic measures against discriminatory practices and procedures. It was not intended to be permanent; it operated pursuant to a coverage formula found in Section 4(b) and required periodic review to determine whether it remained necessary. It was reenacted in 1970, 1975, 1982, and 2006.
During the congressional debates over the 2006 reenactment, civil-rights groups were aware that the passage of time raised questions about the continuing relevance of the coverage formula, which imposed “preclearance” obligations on much of the South. While 2006 was not 1965, advocates argued, race remained a powerful factor in electoral politics, and the South remained the epicenter of discriminatory efforts to dilute the voting strength and political empowerment of people of color.
Supporters gathered thousands of pages of evidence documenting a continuing history of discrimination in jurisdictions across the nation, particularly in the South. Advocates knew that the legislation would be attacked in federal court, and that one of those attacks would lead to the Supreme Court. They also knew that John Roberts, the newly minted chief justice, had expressed strong hostility toward the VRA as a young lawyer in the Reagan administration. Roberts’s unaltered views were a substantial part of the reason that civil-rights organizations opposed his nomination to the Court. Their concerns were validated with shocking clarity when Roberts wrote the majority opinion in Shelby County.
Shelby County was not the first post-2006 reenactment challenge to reach the Supreme Court. In 2009, the Court had considered Northwest Austin Municipal Utility District 1 v. Holder, which included an attack on the constitutionality of Section 5. The Court avoided the constitutional question in that ruling, but Roberts, signaling his opposition to Section 5, teed up the 2006 amendment for Shelby County. Noting that “things have changed in the South,” he wrote: “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”
In the process of reenacting Section 5, Congress considered federalism concerns and adopted an extensive record of continuing discrimination in the covered jurisdictions. It further included “bailout” provisions, which allowed a jurisdiction to demonstrate in court that it no longer operated in a manner that justified Section 5 coverage. None of this saved the provision. To be clear, the Supreme Court did not strike down Section 5 in Shelby County; instead, it invalidated Section 4(b)’s coverage formula. But invalidating the coverage formula while sparing Section 5 was tantamount to disabling a computer’s operating system but leaving the hardware intact.
Writing for a 5–4 majority, Roberts largely ignored the extensive record amassed by Congress. As he had done in Northwest Austin, he insisted that things had changed since 1965, citing the number of black elected officials and the parity in voter participation in many jurisdictions. He also charged that Congress had failed to show proper deference to states’ rights under the 10th Amendment.
In dissent, Justice Ruth Bader Ginsburg noted that from 1982 to 2004, there were more Section 5 objections (626) than in the period from 1965 to 1982 (490), and that Section 5 accounted for a great deal of the progress Roberts cited to support his conclusion that so much had changed. Invalidating the coverage formula, she quipped, was like discarding an umbrella in a rainstorm because you’re not getting wet.
In the aftermath of Shelby County, many of the jurisdictions that had been subjected to Section 5 moved to adopt changes in their political systems that made participation in democratic processes more difficult for voters of color. Alabama, Arkansas, Mississippi, North Carolina, South Carolina, Texas, and Virginia enacted voter-ID laws, and other jurisdictions moved to do things they would not have done prior to Shelby. All of these actions would have been stopped by preclearance, and some, including the Texas photo-ID law and that state’s redistricting efforts, had already been blocked but were resuscitated by the Court’s decision. The cumulative effect could be dramatic, perhaps even decisive, in next year’s elections.
The Voting Rights Act has long been called the “crown jewel” of the civil-rights movement. Section 5 was its heart, but the coverage formula in Section 4(b) was what made that heart beat. By driving a stake through it, Roberts helped fulfill a long-term conservative project aimed at dismantling the corpus of antidiscrimination law adopted during the civil-rights era. He also dealt a heavy blow to democracy.