Southern States to the Supreme Court: We've Changed

(U.S. National Archives)

President Lyndon Johnson meets with civil rights leaders, including Dr. Martin Luther King, shortly after signing the Voting Rights Act (1965).

On March 7, 1965, peaceful protesters advocating for the right to vote were brutally attacked by Alabama authorities. A little more than a week later, President Lyndon Johnson declared in a message to Congress that "experience has clearly shown that the existing process of law cannot overcome systematic and ingenious discrimination. No law that we now have on the books ... can ensure the right to vote when local officials are determined to deny it." LBJ subsequently introduced legislation that would provide an effective right to vote, the Voting Rights Act (VRA) of 1965. Less than 50 years later, the Supreme Court appears poised to cut out the heart of one of the greatest triumphs of the civil-rights movement.

Last Friday, the Court agreed to hear a constitutional challenge to the Voting Rights Act. The constitutionality of the VRA is not being challenged in its entirety. At issue, according to the order issued by the Court, is whether the reauthorization of Section 5 by Congress in 2006 "exceeded its authority under the Fourteenth and Fifteenth Amendments." Section 5, or the "preclearance" provision, requires states with a history of voting discrimination to get any changes to their voting laws approved in advance by the Department of Justice or the D.C. District Court. (The jurisdictions covered by the act are primarily, but not exclusively, Southern—three boroughs of New York City, for example, are required to preclear changes to voting laws.)

Section 5 was, admittedly, a relatively radical step. When the Supreme Court easily upheld Section 5 by an 8-1 vote in the 1966 landmark South Carolina v. Katzenbach, the former civil-rights stalwart Justice Hugo Black—becoming crankier and more conservative as he passed his 80th birthday—was moved to dissent. The application of Section 5, according to Black, would "render any distinction drawn in the Constitution between state and federal power almost meaningless."

There are good reasons why every one of his colleagues—including Warren Court house conservative John Marshall Harlan—disagreed with Black, however. After all, the 15th Amendment had made racial discrimination in state election laws illegal in 1870, but more than 90 years later, in many states this right existed on paper but not in practice. States had shown themselves adept at systematically disenfranchising African Americans through statutes that were formally race-neutral. As Chief Justice Warren noted in his majority opinion, less stringent attempts by Congress to enforce the 15th Amendment had failed. It was impossible for Congress to determine in advance what new techniques might be used to suppress the vote, and leaving challenges to expensive, after-the-fact litigation allowed states to deny voting rights to their citizens for unconscionably long periods of time. The Constitution does not establish some free-floating "dignity of sovereign states"—every one of the Civil War amendments (including the 15th) assumed that states might violate the fundamental rights of their citizens and gave Congress the authority to enforce the amendments through "appropriate legislation." There can be no doubt that the actions of Congress were appropriate, and indeed necessary, given the extensive history of voter disenfranchisement by state governments.

The argument being brought against Section 5 now is not so much that the Supreme Court was wrong in 1966 but that the logic is wrong today because times have changed; in an era in which the state that hosted the capital of the Confederacy has now twice given its electoral votes to an African American presidential candidate (and twice rejected a Republican Senate candidate with a history of racial animus), the time for Section 5 has passed. This reasoning, however, is wrongheaded and dangerous. The 15th Amendment doesn't prohibit only systematic, Jim Crow-level racial discrimination; it prohibits any racial discrimination. As the recent wave of barriers Republican state legislatures have enacted in attempts to suppress the votes of racial minorities makes clear, the time for the Voting Rights Act has hardly passed. Moreover, it is perverse to use the success of the VRA against it. The fact that it eliminated the worst examples of disenfranchisement is reason to keep it, not reason to throw it out.

A second argument against Section 5 is that it doesn't apply to enough states. As The New York Times’s Adam Liptak points out, at the oral arguments preceding the 2009 case in which the Supreme Court refused for the time being to strike down Section 5, Justice Anthony Kennedy suggested that the fact that not every state was covered by the preclearance requirement was a problem: "Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereignty of Alabama is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments in the other." Section 5, according to this line of reasoning, is problematic because it is not uniformly applied.

As a policy matter, Kennedy has a point. As the Prospect's Abby Rapoport has compellingly argued, given that many recent innovations in vote suppression have come from states (such as Pennsylvania and Ohio) that are not covered by the preclearance provision, the VRA should be strengthened by making it uniformly applicable. But this is a problem for Congress, not the Courts, to resolve. It would be the height of cynicism for the Roberts Court to hold on the one hand that Section 5 is too intrusive on state sovereignty, and on the other hand to argue that it's not intruding on the sovereignty of enough states. In addition, given congressional gridlock and what we'll charitably call Republican indifference to state vote suppression, the result of striking down Section 5 almost certainly wouldn't be "leveling up" to a uniformly robust application of the VRA but "leveling down" to the VRA not being effectively applied anywhere.

So the Supreme Court should uphold Section 5. But will it? It's difficult to be optimistic. First of all, the Court generally doesn't hear cases merely to uphold the status quo, and the D.C. Circuit Court opinion it has agreed to review upheld the preclearance provision, leaving the current state of the law undisturbed. This indicates at least some measure of support on the Court for reconsidering Katzenbach. Justice Clarence Thomas is already on the record as believing that Section 5 is unconstitutional, and Justice John Roberts's opinion leaving that question aside in that same case wasn't exactly a ringing endorsement of Section 5, either. And, of course, earlier this year the Republican majority on the Court announced a willingness to place radical new judicial restrictions on federal power (although the Affordable Care Act was saved based on Chief Justice Roberts's reading of the federal tax power).

In 1966, the Supreme Court affirmed that the right to vote free of racial discrimination trumped the sovereignty of the states. In 2006, Congress reaffirmed the necessity of robust federal protection for voting rights. Unfortunately, given the current composition of the Supreme Court, there is a very real possibility that these lessons of history will be willfully forgotten and the 15th Amendment given the same narrow construction that was a dismal failure when tried the first time. Let's hope Chief Justice Roberts will not want his Court to be responsible for gutting one of the most noble and effective legislative acts in American history.

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