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A Devastating Setback for Civil Rights

Congress considered 15,000 pages of evidence when it reauthorized the Voting Rights Act in 2006. A divided Supreme Court struck down a key provision of the law in only 24 pages. Congress must now figure out a way to put it back together.

June 27, 2013

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.