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Expert Brief

50 Years Later, Voting Rights Act Under Unprecedented Assault

On this historic anniversary for our country, Congress should move swiftly to restore the lost promise of the Voting Rights Act.

  • Vishal Agraharkar
Published: August 2, 2015

Cross-posted on the New York Daily News

Fifty years ago this week, Pres­id­ent Lyndon John­son signed the Voting Rights Act, one of the most success­ful civil rights laws in our nation’s history. The Act was designed to curb discrim­in­a­tion in voting and bring equal­ity to the ballot box for all Amer­ic­ans, regard­less of the color of one’s skin. It was the culmin­a­tion of more than a century of battles for black voting rights.

But two years ago, the U.S. Supreme Court, in Shelby County vs. Holder, gutted a key provi­sion of the law. The decision came amid a new wave of laws restrict­ing voting, the most since the Jim Crow era. The ruling destroyed a core protec­tion that allowed the federal govern­ment, in certain places, to block discrim­in­at­ory elec­tion laws before they had a chance to hurt voters.

Now, advoc­ates are waging battles in the courts to save what is left of the Act, and call­ing on Congress to restore this protec­tion to ensure voting can remain equal for all.

Our coun­try has a long history of keep­ing certain people away from the ballot box. Initially, only white male landown­ers could vote. Black men could vote after the Civil War. For a time, many did. But soon, the Jim Crow era took hold and South­ern states passed discrim­in­at­ory laws and carried out a campaign of viol­ence and intim­id­a­tion aimed at prevent­ing them from doing so. Black voter regis­tra­tion and polit­ical repres­ent­a­tion plummeted, and stayed that way for nearly a century.

Start­ing in the 1950s, the Civil Rights Move­ment began to make gains. Voter regis­tra­tion was a key goal to advance equal­ity. One Sunday in 1965, a bloody march across the Edmund Pettus Bridge in Selma, Ala., brought dramatic atten­tion to the cause. Amer­ic­ans across the coun­try, white and black, watched as police officers beat and tear-gassed inno­cent people. The public outcry helped put pres­sure on lawmakers to pass the Voting Rights Act, which John­son signed on Aug. 6, 1965.

The Act unleashed the poten­tial inher­ent in Amer­ican demo­cracy. It was instantly effect­ive. The gap between white and black regis­tra­tion rates dropped from nearly 30 percent­age points in the early 1960s to just eight by the 1970s. Turnout among black voters shot up signi­fic­antly. The black-white turnout gap in the South, approx­im­ately 50 percent­age points in the mid-1950s, was effect­ively elim­in­ated.

Over the years, as demo­graph­ics have shif­ted, the Voting Rights Act has also expan­ded to include protec­tions for Hispan­ics and language minor­it­ies, further­ing the prom­ise of equal­ity for all at the ballot box.

Section 5 of the Act was partic­u­larly instru­mental in achiev­ing these remark­able successes. Under this part of the law, juris­dic­tions with a history of discrim­in­a­tion against African Amer­ic­ans were required to seek approval, or “preclear­ance,” from either the Depart­ment of Justice or a federal court in Wash­ing­ton, D.C., for any changes to their elec­tion prac­tices before they could put them into effect.

This was crit­ical. It blocked and deterred discrim­in­at­ory elec­tion prac­tices — such as last-minute changes to polling loca­tions, or consol­id­at­ing districts, which could dilute minor­ity voting strength — that earlier litig­a­tion, brought after the fact, could do little to remedy. Before 1965, when one discrim­in­at­ory voting prac­tice was blocked through litig­a­tion, defend­ants could turn around and adopt a slightly differ­ent restric­tion in its place. Section 5 aimed to bring this games­man­ship to end.

The VRA was enacted with strong bipar­tisan support, and Congress has reau­thor­ized it four times. During the last reau­thor­iz­a­tion, in 2006, Congress examined thou­sands of pages of evid­ence show­ing that discrim­in­a­tion still exists and the Act was still vital. The Senate voted 98–0, and the House 390–33, to continue it for another 25 years.

Despite all this, some oppon­ents have been skep­tical of the ongo­ing need for these protec­tions in the current day. And in 2013, with the support of the Supreme Court, they succeeded. The Court struck down Section 4, the formula laying out which juris­dic­tions had to seek federal approval for elec­tion law changes, render­ing Section 5 inop­er­able — like a computer without an oper­at­ing system.

A 5–4 major­ity looked at improve­ments in black voter regis­tra­tion rates and the erad­ic­a­tion of restric­tions like the poll tax to find that the “condi­tions that origin­ally justi­fied [Section 5] no longer char­ac­ter­ize voting in the covered juris­dic­tions.”

In her dissent, Justice Ruth Bader Gins­burg decried that the major­ity was hold­ing the Act’s own success against it. “Throw­ing out preclear­ance when it has worked and is continu­ing to work to stop discrim­in­at­ory changes,” she respon­ded, “is like throw­ing away your umbrella in a rain­storm because you are not getting wet.”

At its heart, the disagree­ment boils down to whether, as a nation, we still need federal protec­tions against the possib­il­ity of racial discrim­in­a­tion in voting. Although we have come a long way since the 1960s, the past few years have shown that major racial divi­sions still exist. They may even have gotten worse since 2013, as large major­it­ies of white and black Amer­ic­ans now view race rela­tions as “gener­ally bad,” accord­ing to a recent poll.

The recent rash of discrim­in­at­ory voting laws, unleashed by the Shelby County decision, does not help. States have used the court’s impli­cit approval as justi­fic­a­tion to pass strict meas­ures. These may not be as obvi­ously discrim­in­at­ory as liter­acy tests, but they simil­arly prevent people from voting.

For example, mere hours after the high court ruling, Texas imple­men­ted a strict photo ID law, which had previ­ously been rejec­ted under Section 5. That summer, the North Caro­lina legis­lature passed a sweep­ing law that also insti­tuted a strin­gent photo ID require­ment, elim­in­ated same-day regis­tra­tion, and cut back on early voting.

All of these laws respond to phantom complaints of voter fraud, and all dispro­por­tion­ately hurt the abil­ity of minor­it­ies to vote. In Octo­ber 2014, a federal judge found 600,000 registered Texas voters do not have accept­able ID. Testi­mony showed African-Amer­ican and Hispanic registered voters are two to four times more likely than white registered voters to lack photo ID. In North Caro­lina, data showed African Amer­ic­ans used early voting and same-day regis­tra­tion at much higher rates than whites.

Over­all, since the 2010 elec­tion, 21 states have imposed new voting restric­tions. In 2016, 15 states will have more strict rules than they did in 2012. The storm of discrim­in­at­ory changes fore­cast by Gins­burg has appar­ently come to pass.

Many of these meas­ures have been aggress­ively chal­lenged under the remain­ing sections of the Voting Rights Act. Two major cases are pending in Texas and North Caro­lina, where attor­neys laid out strong evid­ence show­ing how these laws prevent citizens from voting, and dispro­por­tion­ately discrim­in­ate against blacks and Hispan­ics.

Take Sammie Louise Bates, a witness in the Texas trial in Septem­ber 2014. As the only one in her family who atten­ded school, in a small town in Missis­sippi, Bates helped her grand­mother count out her poll tax, a fee imposed with the intent to discour­age black voters from voting

This made her angry — and inspired her to become a lifelong voter. But in 2013, Texas’s new photo ID law preven­ted her from cast­ing a ballot. She had her voter regis­tra­tion card, contain­ing her name and current address, and an Illinois photo ID — both of which would have been suffi­cient to prove her iden­tity in prior elec­tions. But when she tried to get a Texas ID, she kept running into the same obstacle: She needed to obtain her Missis­sippi birth certi­fic­ate, which would cost $42.

“I had to put $42 where it was doing the most good,” she stated. “It was feed­ing my family, because we could­n’t eat the birth certi­fic­ate. That’s for sure. And we could­n’t pay rent with the birth certi­fic­ate.”

Bates was one of approx­im­ately 16 witnesses who test­i­fied about the diffi­culties they person­ally faced in obtain­ing accept­able ID, ranging from insuf­fi­cient funds to endless red tape. After hear­ing multiple expert analyses, Judge Nelva Gonzales Ramos struck down the law in Octo­ber 2014 as discrim­in­at­ory under Section 2 of the Voting Rights Act.

Yet, despite this evid­ence, the Supreme Court allowed it to remain in effect for the Novem­ber 2014 elec­tion, pending an appeal that has still not been resolved.

This high­lights the single most import­ant loss in the Supreme Court’s Shelby County decision. Before, voting laws could not go into effect in certain juris­dic­tions until the state had demon­strated they did not discrim­in­ate. After the ruling, laws must be chal­lenged in case-by-case litig­a­tion that is costly and can take years. As a result, those meas­ures can remain on the books to disen­fran­chise voters like Bates. And there’s no guar­an­tee that a victory won’t simply give way to addi­tional restric­tions.

Another major lawsuit is also pending in North Caro­lina, where a trial just wrapped up. Its laws are also being chal­lenged under the remain­ing provi­sions of the Voting Rights Act and the Consti­tu­tion. At least one of these cases is likely to make it to the Supreme Court. What the court decides will determ­ine not just the fate of those laws, but what is left of the Voting Rights Act.

Despite these fights, several states have advanced bipar­tisan reforms to modern­ize voter regis­tra­tion in recent years. They seek to stream­line the process and increase access for all voters. Oregon, for example, passed a law to auto­mat­ic­ally sign up eligible citizens in the motor vehicle data­base. Hillary Clin­ton recently embraced a form of auto­matic and univer­sal regis­tra­tion. Rand Paul supports restor­ing voting rights to some people with past convic­tions. Other states have expan­ded early voting oppor­tun­it­ies and moved regis­tra­tion online.

But while all lead­ers should work to create a voting system that works well for every­one, they must also fight for one that discrim­in­ates against no one.

We have been pain­fully and repeatedly reminded in recent days and months about the continu­ing neces­sity of work­ing for racial justice and equal­ity in Amer­ica. The Voting Rights Act, which gets at the core of demo­cracy, is essen­tial to the fight.

At the 50th anniversary of the March from Selma to Mont­gomery earlier this year, civil rights lead­ers conven­ing in Alabama were united around this common purpose. This time, however, instead of seek­ing passage of the Voting Rights Act, they sought its restor­a­tion.

Whatever one’s views of the Shelby County decision, and however one feels about the Court’s view that “our coun­try has changed,” there is no ques­tion the Supreme Court believes Congress has the power to act. It prac­tic­ally invited action by acknow­ledging that “while any racial discrim­in­a­tion in voting is too much, Congress must ensure that the legis­la­tion it passes to remedy that prob­lem speaks to current condi­tions.”

Today, Congress has intro­duced two separ­ate bills — the Voting Rights Amend­ment Act and the Voting Rights Advance­ment Act — that would restore the lost protec­tions of Section 5, making it oper­at­ive once again, and modern­ize the Voting Rights Act for the 21st century. On this historic anniversary for our coun­try, Congress should move swiftly to restore the lost prom­ise of the Voting Rights Act.

Theodore M. Shaw is the Julius L. Cham­bers Distin­guished Professor of Law and the Director of the Center for Civil Rights at the Univer­sity of North Caro­lina at Chapel Hill School of Law. He served as director-coun­sel and pres­id­ent of the NAACP Legal Defense Fund from 2004 to 2008.