Voting Rights Act: The Legacy of the 15th Amendment

"The historic accomplishments of the Voting Rights Act are undeniable. "

--Chief Justice Roberts, NAMUDNO v. Holder

June 29, 2009

"The historic accomplishments of the Voting Rights Act are undeniable. "

--Chief Justice Roberts, NAMUDNO v. Holder

Last week, the Supreme Court avoided a constitutional challenge to a critical component of the Voting Rights Act by a small utility district in Austin, Texas in the case NAMUDNO v. Holder.  This ruling is an important one because it rightly left the Voting Rights Act, probably the nation's most successful piece of civil rights legislation, fully intact and capable of performing the important duties with which it was tasked, namely that of fighting racial discrimination in voting.  

As the Court recognized, the Voting Rights Act is responsible for much of the progress we have achieved towards equality in voting.  Literacy tests, grandfather clauses, "good character tests"-all were made illegal by the Voting Rights Act.  Other provisions, like the one at issue in the NAMUDNO case, required that certain jurisdictions, those which have had demonstrable histories of discrimination in voting, seek "pre-clearance" or certification in advance from the Department of Justice or a court that certain proposed changes to their election systems would not have a negative effect on the voting rights of racial and ethnic minorities. 

The Voting Rights Act, while important for our country's future, also plays an important role in our past because the Voting Rights Act is our greatest legacy to the 15th Amendment.  At the beginning of 1867, a few years before the 15th Amendment was passed and ratified, there were no federal laws guaranteeing the voting rights of any African-American males.  But before 1868 ended, all that had changed.  In 1867, the Reconstruction Congress passed legislation enfranchising African-American males in the District of Columbia, overriding a presidential veto in opposition.  Within the same month, Congress overrode a second presidential veto and passed legislation giving African-American men the right to vote in other geographic areas subject to federal control.  A few weeks later, Congress conditioned the Territory of Nebraska's admission into the Union upon abolish all racial qualifications on voting.  Most significantly, in the First Reconstruction Act, Congress refused to re-admit the former Confederate states into the Union unless the states amended their constitutions to allow voting by male citizens "of whatever race, color, or previous condition" and required that these states not amend their constitutions in the future to deprive any citizen or class of citizens the right to vote. 

So before the 15th Amendment was passed, Congress had already formally enfranchised African Americans in the former confederacy and the federally-controlled territories.  But the Reconstruction Congress knew that those acts were not sufficient for a right as fundamental as the right to vote.  A constitutional amendment was needed to make sure the gains that had been achieved were not rolled back by circumvention (such as private or state-sanctioned violence or intimidation) or future electoral majorities with discriminatory inclinations.  And so, the Reconstruction Congress passed, and the states ratified a 15th Amendment designed to prevent backsliding and to ensure a continuing role for Congress in the eradication or racism in voting.  It was broad in its scope in that it gave Congress wide latitude, but narrow in its focus in that it covered only where racial discrimination intersected with voting.  The 15th Amendment's opponents balked about the shift the Amendment created in the relationship between federal and state governments by transferring to the federal government primary responsibility for electoral qualifications related to race, an area that had been once left exclusively to the states, but the Amendment's proponents stood firm that the Amendment had to bestow upon Congress the power to combat racism in voting in the future.  After the Amendment passed, Congress utilized this power to pass Enforcement Acts after the 15th Amendment that were broad and expansive, and an anti-Klu Klux Klan Act -- all reflecting Congress' intention that its powers be at their zenith when it was protecting racial minorities from discrimination in voting.

Congress' broad and bold actions were squashed by the Supreme Court, which issued rulings emasculating the strength of the Enforcement Acts.  For almost 75 years, the nation slipped into Jim Crow.  We might still be there if Congress had not acted again under its broad 15th Amendment powers to enact the Voting Rights Act of 1965.  The Voting Rights Act seeks to protect, as did the 15th Amendment, current exercises of the right to vote, but also like the 15th Amendment, it seeks to ensure that voting rights are not curtailed by future state behavior.  This is done in large part by the "pre-clearance" provisions at issue in the NAMUDNO case, which does not allow proposed state changes to their election practices to be implemented until it can be certified that the change will not have a negative effect on the voting strength of a racial group.

The Voting Rights Act effectively revived Congress' role in combating racism in voting from the dormancy it was cowed into by the Supreme Court.  And Congress amended and reauthorized the Act.  Most recently, in 2006, after reviewing voluminous evidence of present-day discrimination and holding extensive hearings, Congress made the near-unanimous policy determination that there still remained work for the Voting Rights Act and its pre-clearance provisions to do and that the Act should be reauthorized.

The Act is a modern-day rejection by our country of racism in voting, and I for one am proud that our elected representatives made such a statement.

In the case, the utility district, named the Northwest Austin Municipal Utility District (and from where the acronym "NAMUDNO" comes from in the case name), argued that it should be allowed to seek a statutory exemption from the Act's pre-clearance provisions that affected the entirety of the state of Texas.  NAMUDNO further argued that if it were not entitled to the statutory exemption, then the Voting Rights Act must be struck down as an unconstitutional intrusion of Congressional power into state sovereignty.

Eight Justices concluded that NAMUDNO should be allowed to "bail-out"-the term used for a jurisdiction which seeks exemption from the pre-clearance provisions - leaving Justice Thomas standing alone in his argument that the Court should have struck down the relevant sections of the Voting Rights Act today.

There is no doubt that the decision is a victory for voting rights, especially because the activists who recruited NAMUDNO for the challenge sought wholesale destruction of the Act's pre-clearance provisions.   But the decision was what lawyers would call a "narrow" ruling.  Because a majority of Justice concluded that NAMUDNO was entitled to the exemption, the Court did not need to decide whether the pre-clearance provisions were a constitutional exercise of Congressional power.  While the decision does not foreclose future challenges to the constitutionality of the Act, if and when they come, the Court should remember that the 15th Amendment amply and clearly supports giving Congress much deference in its determinations as to how to best combat race discrimination in voting and the power to take the steps to effectuate that determination.