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.