Yesterday was the 50th anniversary of the Voting Rights Act, which has been both sword and shield for racial equity and inclusive democracy. And yet today, the right to vote for millions of Americans is in more danger than at any time since the passage of the law, thanks to the Supreme Court decision two years ago that struck down the most important part of the law and cleared the way for states to enact targeted voting restrictions.
Just six months after Bloody Sunday on March 7, 1965, when nonviolent civil rights marchers were attacked in Selma, Alabama, on the Edmund Pettus Bridge, Congress passed and President Lyndon Johnson signed the Voting Rights Act of 1965.
The fight to realize political rights for people of color has been a story of advances and regressions, constructions, reconstructions, and deconstructions. Martin Luther King Jr. delivered his famous “Give Us the Ballot” address in 1957, noting the opposition to the Brown v. Board of Education decision and practice of “nullification” throughout the South. He indicted the continuing practices in which “all types of conniving methods are still being used to prevent Negroes from becoming registered voters. The denial of this sacred right is a tragic betrayal of the highest mandates of our democratic tradition.”
The 15th Amendment grants Congress the power to enact legal measures designed to stop racial discrimination in voting. The adoption of the 15th Amendment during Reconstruction—along with the 13th and 14th Amendments—was a condition for the former Confederate states to rejoin the Union after the Civil War. But since the end of Reconstruction in 1876, with the disputed election of President Rutherford B. Hayes and the withdrawal of federal troops, Southern states had been effectively nullifying the 15th Amendment. The VRA finally put real legal protections and power behind the push for political participation by people of color.
For the last 50 years, the VRA has been the most successful civil rights law ever enacted by Congress, and always on a bipartisan basis. Each time Congress has reauthorized the enforcement provisions, they were signed by Republican presidents—Nixon in 1970, Ford in 1975, Reagan in 1982, and George W. Bush in 2006. Whatever political disagreements existed, there was a basic understanding that voting rights—and particularly voting that is free of racial discrimination—was fundamental to our identity as a free people because it is preservative of all other rights.
Shelby County v. Holder
The Voting Rights Act knocked down barriers to voting by invalidating literacy tests, poll taxes, and other discriminatory mechanisms, and setting up a program to send federal registrars to the South to register black voters. Section 2 banned racial discrimination in voting, but most importantly, Section 5 required jurisdictions where black people had been prevented from voting to get approval from the federal government for any changes to their voting rules, and Section 4 determined which jurisdictions were covered by that preclearance requirement.
The genius of the preclearance provision was that instead of waiting for the political rights of black citizens to be suspended ever-more “conniving methods” and challenging each new method one by one in expensive litigation, the federal government could block a change before it went into effect if it would harm minority voting rights. But in June 2013, the United States Supreme Court in Shelby County v. Holder struck down Section 4 and got rid of the preclearance provision. In his Shelby decision, Chief Justice John Roberts effectuated his myopic vision of “colorblindness” and elevated his expansive view of states’ rights over the federal government’s interest in preventing racial discrimination in voting.
The conservative majority on the Roberts Court seemed to hold the VRA’s very success against it, and to perceive in the election of President Barack Obama the definitive end of centuries of American apartheid. The claim that America is a post-racial society today would be only risible if it wasn’t also so deadly. Pretending that racial discrimination—in voting, as elsewhere—doesn’t happen requires being blind to our country’s history, and its present.
Justice Ruth Bader Ginsburg, on the other hand, in her dissent, showed a much greater understanding of the reality of race and the critical role played by the the VRA in protecting voters. In what is now one of her most-quoted lines, Ginsburg wrote, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
It is cold, wet comfort to note that Ginsburg was right. In the two years since the Shelby decision, Congress has failed to restore the Voting Rights Act, and voters have been subject to more discrimination than at any time in the past 50 years.
Wednesday, on the eve of the VRA’s 50th anniversary, an important victory for voting rights was won when the Fifth Circuit Court of Appeals upheld a lower court’s ruling that Texas’s strict photo ID law is discriminatory and violates Section 2 of the VRA.
The lower court had enjoined the ID law, which—as one of the strictest of its kind in the country—had required voters to bring one of only a very few and seemingly targeted forms of identification, such as a concealed-handgun license or an election identification certificate issued by the State Department of Public Safety, while excluding other more common forms of identification. The Texas photo-ID law had been enacted in 2011, right after 2010 Census data revealed that Texas had officially become a majority-minority state. As a Lawyers’ Committee report about the Texas voter-ID trial shows, witnesses depict a “racially charged” atmosphere in the Texas state legislature, with “a lot of anti-Hispanic sentiment.” The law was blocked by a federal court in 2011, but was implemented the day after the Shelby decision.
The effects of this law were immediate. In 2014, Texas had one of the worst voting rates in the country, with turnout dropping 5 points from 2010. The Brennan Center for Justice released a report entitled “Voting 2014: Stories from Texas,” which included tales of a 95-year-old mother who for the first time in her adult life could not vote because she no longer drove, a woman who was told her military ID was inadequate, and a man who could not vote because his driver’s license had expired, though he had both his voter registration card and his birth certificate.
The Fifth Circuit, one of the more conservative appeals courts in the country, declared that the photo-ID requirements unlawfully burdened the right to vote because it had “an impermissible discriminatory effect against Hispanics and African-Americans.”
Some might point to this victory under Section 2 as evidence that the loss of the preclearance provisions isn’t fatal. But 600,000 Texas citizens—600,000 registered voters—who are predominantly poor, black, Hispanic, and about 4.5 percent of all registered voters were denied their right to vote in last fall’s elections because of this discriminatory law. Furthermore, the Fifth Circuit’s decision simply re-established what a federal court had already held. Without the preclearance provision, which puts the burden of clearing a change in voting rules on the government, it took an enormous commitment of time and resources on the part of the plaintiffs, counsel, and government who sued to stop Texas’s strict ID law..
As in Texas, the North Carolina legislature passed H.B. 589 just weeks after Shelby, and its intent to obstruct voting by African Americans is transparent. The trial for the challenges to H.B. 589, North Carolina’s monster voter-suppression law, just wrapped up last Friday, with the Justice Department and other plaintiffs arguing that the law violates the VRA’s Section 2 as well as the 14th and 15th Amendments. A decision has not yet been announced.
The attack on voting rights in North Carolina is a shameful attempt by the state’s politicians to curtail access to the ballot, in ways devised particularly to discourage African Americans. The director of the Elections Research Center, Barry Burden, testified that “H.B. 589 is a laundry list of voting changes—all restrictions to voting, all falling more heavily on Black and Latino voters than Whites. The law imposes new costs on voters, and these costs are felt more heavily by Black and Latino voters. Black and Latino voters are thus more likely to be deterred from voting than Whites.”
The law’s voter-ID requirement for 2016 allowed for only a few forms of acceptable identification, and according to the state board of elections’ own data, more than 300,000 registered voters lacked one of those allowed IDs—including 34 percent of the state’s registered black voters. Recognizing the weakness of that particular element of their case, North Carolina lawmakers eased the voter-identification burdens so as to separate that issue from the rest of the voter-suppression pieces on trial.
Among the other voter-suppression provisions in the law was the abolishment of same-day registration, which allows eligible voters to register to vote or correct problems with their registration and cast their ballot at the same time. More than 40 percent of the voters who used the program in 2012 were African American, though only 20 percent of the state’s voting-age population is African American. Between 2004 and 2008, after same-day registration went into effect, North Carolina saw the greatest increase in voting of all states, with almost 253,000 citizens using the program during the early-voting period.
North Carolina also stopped accepting provisional ballots cast in any precinct other than one’s assigned precinct. One witness in last week’s trial, Lue Alice Abercrombie, 46, testified that she had thought she could vote at the same precinct as her fiancé, since they live on the same street. After waiting more than three hours in line, she was told she was at the wrong place, but it was too late for her to get to her own polling location before it closed.
The law also shortened the early voting period by a full week, including important weekend hours, when black churches organized “souls to the polls” voter drives. And it ended the successful program of pre-registering 16- and 17-year-olds, which automatically added them to the rolls when they turned 18. A teacher who taught primarily black and Latino high-school students in Durham for 35 years testified that without the pre-registration, “I fear that they won’t get registered. I think we’ll lose them.”
Ending all of these successful programs at once compounds voter suppression. For example, a Demos report from 2012 looked at statewide data showing that same-day registration reduces the need for provisional ballots. There were 23,000 fewer provisional ballots cast in North Carolina in 2008 compared to 2004, and provisional balloting was nearly cut in half between the 2006 and 2010 elections. In fact, 58 percent of the state’s county election officials who were surveyed anticipated an increase in the number of provisional ballots if same-day registration was eliminated. And indeed, the number of provisional ballots shot up in the 2014 elections, and people who mistakenly cast their ballots at any precinct but their assigned precinct no longer had their votes counted. This is especially burdensome for voters of color, who are twice as likely to cast ballots out of precinct as white voters.
North Carolina tries to justify its restrictions as preventing voter fraud, but the state’s board of elections told legislators just before the bill’s introduction that out of the 35 million votes cast since 2000, there were only two referrals for voter impersonation. As political science professor Lorraine Minnite testified, “In a democracy, the integrity question is an access question. … If some people have less access, then the electoral process doesn’t have as much integrity.”
If the preclearance protections of the Voting Rights Act had still been in place, these restrictions of voting rights likely would not have been allowed, and we wouldn’t still be waiting for a court decision that we hope will vindicate the voting rights of hundreds of thousands of North Carolinians
VRA Today, VRA Tomorrow, VRA Forever
As we celebrate the crown jewel of our country’s civil-rights protections, we can’t forget what made it necessary. The VRA was passed at a time when elected leaders such as Alabama Governor George Wallace proudly declared, “Segregation now, segregation tomorrow, segregation forever!” Today, the fact that personal, blatant racial invective is no longer as acceptable does not mean that instances of strategic racism and structural barriers don’t still prevent equal access to the ballot box.
As it is, unless Congress acts, voters in 2016 will experience the first presidential election in 50 years lacking strong federal protections against racial discrimination in voting. Americans across the political spectrum, of all races and regions, want to see the Voting Rights Act restored. Eighty-one percent of voters support the law, and 69 percent want Congress to act to restore its protections.
Congress can act by taking up the Voting Rights Advancement Act, recently introduced to respond to the modern-day voter-discrimination methods that have evolved in the last 50 years. It responds to the Shelby decision by protecting voters nationwide—especially people of color, non-English speakers, and people with disabilities. But most importantly, it revives the preclearance formula to cover those states with a pattern of discrimination that puts voters at risk.
As Ginsburg wrote in her Shelby dissent, “the grand aim [of the Voting Rights Act] is to secure to all in our polity equal citizenship stature, a voice in our democracy undiluted by race.” We need to be guided by our democratic values as a country. There should not be one party that is supportive of voting rights for all, while major elements of the other major party countenances and encourages voter suppression. We are all Americans, and or system of self-government requires that every voice be heard.
Ginsburg, quoting Shakespeare, noted that “what’s past is prologue”; William Faulkner, one of the South’s favorite sons, was even more direct when he stated: “The past is never dead. It’s not even past.” When Johnson signed the Voting Rights Act, he declared, “Today is a triumph for freedom as huge as any victory that has ever been won on any battlefield.” On this 50th anniversary no one, least of all Congress, should stand by and allow the hard-fought gains of political equality to slowly bleed away.