“The stated purpose of the Civil War Amendments was to arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States,” writes Justice Ruth Bader Ginsburg in her dissent against the five justices who ruled to overturn Section 4 of the Voting Rights Act (VRA) today.
The reason for citing this fact of history is straightforward: In it resides the core dispute of Shelby County, Alabama v. Holder, the case decided by the Supreme Court this morning.
The Fifteenth Amendment to the Constitution was the last of the three Civil War amendments and arguably the most controversial. It was one thing to emancipate the slaves (the Thirteenth Amendment) or guarantee equal protection under the law (the Fourteenth Amendment), but the Fifteenth granted suffrage to black men, which was a bridge too far for many whites, in both the North and South. To Southern politicians of the time, it was “the most revolutionary measure” to ever pass Congress.
The full text of the amendment is as such: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” What’s more, “The Congress shall have power to enforce this article by appropriate legislation.”
For nearly a century after its passage, the first clause was all but unenforced. States—in the South and otherwise—were permitted to restrict the franchise for blacks through use of poll taxes, literacy tests, grandfather clauses, and broad criminal codes that required disenfranchisement for the smallest offenses. The Voting Rights Act, as Justice Ginsburg explains, was Congress’ attempt to actualize the second clause of the Fifteenth Amendment, and begin to fix the abuses of the past.
In particular, Section 4 of the law sets down a formula to identify which state and local governments with a history of racial discrimination are required to “pre-clear” (a provision of Section 5) changes to voting law with the federal government. By and large, these are the states of the former Confederacy and other areas with a history of low black turnout and laws that sought to reduce black voting.
In his opinion—speaking for the 5–4 majority—Chief Justice John Roberts takes pains to emphasize the extent to which he isn’t opposed to the goal of ending racial discrimination in voting. He just doesn’t believe the current formula reflects the progress of the last 40 years, particularly in terms of black turnout and rates of officeholding. Striking it down gives Congress a chance to reevaluate the formula, and to devise one that reflects the conditions of the present moment.
This sounds reasonable, but there are two facts that make this an extraordinary decision. First, it ignores the extent to which Congress built flexibility into the VRA with its 2006 reauthorization, which passed with near-unanimous support after months of investigation and intensive hearings. For instance, if a state or local government can show a decade of compliance—as well as progress toward remedying racial discrimination in voting—it can receive an exemption. The states and localities that continue to fall under pre-clearance are those that show ongoing patterns of discrimination on top of meeting the standards set out in Section 4. “All told,” notes Ginsburg, “between 1982 and 2006, DOJ objections blocked over 700 voting changes based on a determination that the changes were discriminatory.” In reauthorizing the VRA with the same formula, Congress emphasized the extent to which it felt comfortable with this continued vigilance. To cite progress as a reason for striking it down, Ginsburg writes, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”
The second thing relates back to the Fifteenth Amendment. Yes, Roberts says that Congress can revisit Section 4 and devise a new formula. But the reality is this: There’s little chance that Republicans in either chamber would sign on to revising the VRA. Which means that, for all intents and purposes, pre-clearance—which relies on Section 4 for its teeth—is no longer in effect. If Congress was trying to fulfill the mandate of the Fifteenth by reauthorizing the VRA, then Roberts has said, “No, you can’t, because times have changed.”
The problem is that our long history of apartheid, discrimination, and white supremacy requires an equally long attempt at repair and reconciliation. It’s why the 2006 reauthorization extended the VRA for another quarter century: because “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment,” the law’s authors note.
The last three years are proof positive of this assessment. Writing for Colorlines, Brentin Mock notes that four states—Virginia, North Carolina, Alabama, and Mississippi—have passed voter identification laws that could disenfranchise hundreds of thousands of people, the large majority of whom are African Americans. The Justice Department was able to block these under pre-clearance, but the Court’s ruling now means they can go forward. It’s also not hard to find information on Republican-passed laws that restricted early voting, made registration more difficult, closed polling locations (almost always in predominantly minority precincts), and created new, more onerous requirements for casting a ballot. These laws are largely the reason that African Americans waited in line to vote nearly twice as long as their white counterparts. That this occurred mostly in the states of the former Confederacy (the ones formerly covered by pre-clearance) is no accident.
A whole host of people—with far more expertise than I’ll ever have—will debate this ruling for a long time. But at the risk of hyperbole, I think it’s worth offering a few early thoughts on what it might mean in the broad history of this country’s fight for racial equality.
It is difficult to overstate the extent to which racism is tied to the history of this country. Without slavery, the Declaration of Independence is hard to imagine. Without fealty to Jim Crow, there is no New Deal. At various points however—the Civil War, Reconstruction, and the Civil Rights Movement—we have tried to loosen our bonds to racism and rectify the evil of the past. Each time, we make genuine progress. The 1890s were a time of savage violence and disadvantage for African Americans, but they weren’t enslaved. Blacks were still far behind the mainstream in the 1970s, but they had gained new opportunities for advancement. But to fully disentangle racism from national life requires a tremendous amount of energy. After all, you don’t just need to provide formal equality or encourage tolerance, you need to reform the whole system—the full range of institutions that privilege whites at the expense of blacks and other minorities.
Americans have never been able to commit to that project. Reconstruction was a start, and it ended in failure after a decade of Northern frustration and Southern hostility. The Great Society and the civil rights laws of the 1960s constitute the beginnings of a second attempt, and in the case of the Voting Rights Act, it was a significant success.
But that success hasn’t fixed the problem, and many Americans have grown tired of trying to remedy the effects of racism. By striking down Section 4 of the VRA and ignoring the clear words of the Fifteenth Amendment, Roberts is elevating white America’s racial fatigue into constitutional law.
Is this a backlash? I’m not sure. But between the Court’s ruling on the VRA, the ongoing assaults on affirmative action, and the white public’s belief in its own marginalization, I will say that, yet again, we have reached the limits of what this country will do to address the conditions of African Americans. Or, if not that, then we’re taking another break—not a long one, let's hope—from grappling with the implications of our history.