Crossposted on Boston Review.
On Tuesday, the Supreme Court dealt a hard blow to the Voting Rights Act of 1965—a law that political leaders from both sides of the aisle have called the country’s most successful piece of civil rights legislation. It was passed in a storied time in our country’s history, when race relations were deeply strained, state disenfranchisement efforts went largely unchecked, and activists seeking change met violence. In 2006, Congress readopted the law by overwhelming and bipartisan majorities, after due diligence and 15,000 pages of evidence showed that it was still needed. A divided Court struck down a key provision of the statute in only 24 pages. Congress must now figure out a way to put it back together.
The VRA has several provisions, but the Court’s decision focused on two—Section 4 and Section 5. Section 5 requires certain jurisdictions to submit any proposed change in voting procedures to the U.S. Department of Justice or a federal district court in D.C. before it goes into effect—to ensure it does not harm minority voters. This process, known as “preclearance,” blocks discrimination before it occurs. Section 4 designates which states must adhere to Section 5. Under the Court’s ruling, Section 5 still stands, but it is effectively inoperable because Section 4, which specified who had to follow the preclearance process, was struck down.
The enormity of the Supreme Court decision cannot be overstated. While there certainly were federal anti-discrimination laws prior to 1965, they were insufficient to secure the rights promised to all citizens by the Constitution, which prohibits the government from denying the right to vote based on race. At the time, discriminatory election practices were so widespread and pervasive that case-by-case litigation was ineffective. States were constantly coming up with new ways to discriminate, and voting rights litigators did not have the resources or time to engage in the unwieldy exercise of combating election discrimination in every jurisdiction. Without an operating Section 5, similar problems could be expected to return. In Texas, for example, a federal court last summer found that the state legislature intentionally—not accidentally—discriminated against minority voters in its redistricting plans.
By striking down the VRA’s core, the Court has opened a floodgate to all sorts of potential voting changes that had been deterred by Section 5. For example, after Tuesday’s Supreme Court ruling, the Texas attorney general immediately announced that a voter-ID law previously blocked by Section 5 would now go into effect. The law requires voters to show a photo ID in order to cast a ballot, but restricts the kind of IDs that may be used. A gun license, for example, can be used, but a student ID cannot. Research shows that as many as 2.3 million registered voters may lack the required ID, including hundreds of thousands of minorities. In North Carolina, state lawmakers, citing the Court’s decision, have already planned to vote on a package of changes, including a photo ID requirement and elimination of early voting and same-day registration. And other changes, which may have lain dormant while awaiting Section 5 review, now have no serious hurdles to implementation.
Such changes to election rules will no doubt leave voters confused. It will also lead to lawsuits, as states try to implement laws that were already blocked. There is litigation already over whether the Texas photo ID law is lawful under other legal provisions.
The media and public have certainly paid attention to several controversial statewide voting restrictions passed recently, such as Alabama’s law requiring documentary proof of citizenship to register or Mississippi’s photo ID law. But we should also be concerned with election changes outside of public view. Many voting changes happen at the hands of local election officials, and some changes—such as switching polling locations at the last minute, cancelling elections, or moving from elected to appointed bodies—could have a devastating impact on the ability of minority communities to participate fairly and effectively in our political process.
The Shelby County case provides an excellent example. In 2006, the city of Calera in Shelby County, Alabama—the mostly white county that brought this case to the Supreme Court—enacted a redistricting plan without complying with Section 5’s preclearance requirements. This led to the loss of the city’s sole black councilman, Ernest Montgomery. The Department of Justice sued Calera under Section 5, and Calera was required to draw a new, nondiscriminatory redistricting plan and hold another election. In this election, black voters selected their candidate of choice, and Mr. Montgomery regained his city council seat. Without Section 5, this reversal might not have happened.
Voters are not likely to give up their rights without a fight, thankfully. Other provisions of the Voting Rights Act offer some protections, and both the U.S. Constitution and state constitutions might be successfully wielded on behalf of voters. But in order to offer voters the protections they had under Section 5, we need a new formula to determine which states require federal oversight. That task now rests with Congress, which must act in a bipartisan and swift manner to devise a formula that will enable the Voting Rights Act to effectively protect voters once again.
Photo by SEIU International.