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.”