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.
But on Tuesday, the Supreme Court struck down Section 4, saying that the formula for determining which states had to ask permission to change their voting procedures and practices was unconstitutional. By striking down Section 4, the Court made it impossible to implement Section 5, at least in the short term. The majority opinion described the formula as “obsolete” and seems to argue that states must have a kind of assumed equality as members of our union.
The Court is wrong.
As Yale Law Professor Akhil Reed Amar argues, the Fourteenth Amendment provides a model, embedded in our constitution, for treating states differently when they show a history of egregious violations against humanity and democracy. Amar points out that “states with abysmal track records of rights-enforcement and democratically deficient voting rules were not allowed back into Congress to sit alongside states with minimally acceptable track records, and these same democratically deficient states were also not allowed to resume full powers of state self-governance enjoyed by their nondeficient sister states.”
It is entirely consistent with our Constitution to require states with pathetic track records to meet a higher standard of self-governance than those without those histories.
So, what can we do?
Section 5 pre-clearance ensured that many states had to ask permission before passing new legislation that affects voting. Now those states can—and will—pass laws without an automatic review. But citizens can still force the courts to determine if these laws are unfair by bringing suit against them. This significantly shifts the burden and makes if much harder to protect fair voting practices. But who said democracy was easy? Pre-clearance was an effective deterrent to discriminatory practices, but threat of swift litigation can also deter those who seek to create barriers to voting. We will need the commitment of an army of civil rights lawyers to begin to bring these cases.
2. Vote in 2014!
As devastating as this ruling is, it is also a sign of weakness on the part of the Court. Unwilling to simply declare Section 5 unconstitutional, they struck down the formula for enforcing it. But they left the door open for Congress to write a new formula. If you want a renewed Voting Rights Act, you are going to have to vote for a new Congress. American voters cannot afford to sit out these midterms as they did in 2010, only a significant effort to turn the tide in the 114th Congress can ensure a fair formula that puts teeth back into this civil rights legislation.
3. Watch Mount Holly.
But watch out, because even if Congress suddenly discovered a latent, bipartisan commitment to equal ballot access, it might have a hard time crafting an acceptable formula for pre-clearance. The Supreme Court will soon decide a case known as Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc. This will allow the Court to decide if it is constitutional to determine if a policy is discriminatory based on “disparate impact.” In other words, Mt. Holly will decide if it is enough to be able to show that a policy has a strong, negative impact on communities of color, or if you must also show that the policy makers have a racist intent. Depending on how the Court decides Mt. Holly, it may be impossible to keep lawmakers from restricting access to the polls, unless you can prove they were purposefully racist in their intentions.
4. Constitutional Amendment.
No American citizen has a positive right to vote ensured by the Constitution. Go back and read that language from the Fifteenth Amendment again. See? All it says is that a state can’t abridge your right to vote. The Voting Rights Act and the pre-clearance rules are necessary only because the right to vote and the rules of how you cast your ballot all reside with the states. Tuesday’s decision shows just how fragile our rights are when they are vested in this way. Now may be the time to introduce and begin to build support for a constitutional amendment ensuring the right to vote and setting out a national standard for ballot access.
Most importantly, don’t give up hope. Remember, the struggle continues. Victories for fairness must always be defended with democratic vigilance. This nation’s founding declaration proclaims the self-evident nature of human equality and of the righteousness of self-government. Our job is to ceaselessly work to realize that vision.
The Supreme Court may have struck down part of the Voting Rights Act, but, according to Ari Berman, there’s something the court still doesn’t understand about the VRA.