We noted back in March that the Supreme Court was hearing arguments to strike down vital sections of the Voting Rights Act of 1965. Yesterday, it did just that, ruling that Section 4 of the Act requiring nine states, mostly in the South, to get federal approval of any proposed changes to state voting law, is unconstitutional.
As we said in our March post,
“The VRA was passed in 1965 as part of President Johnson’s civil rights legislation. The U.S. Department of Justice website describes it this way: ‘Pursuant to the Act, the Voting Section undertakes investigations and litigation throughout the United States and its territories, conducts administrative review of changes in voting practices and procedures in certain jurisdictions, and monitors elections in various parts of the country.’ This means that voting procedures anywhere in the U.S. can be reviewed, especially when those procedures are changed, and that elections can be monitored to make sure they are fair. Notice the language goes from the entire U.S. and its territories to “certain jurisdictions”—this was originally directed at the southern states, where repression of black voters was well-documented. The Act does not say “southern states” because its authors knew that while it was the south that had a demonstrable problem with fair elections in 1965, the problem could crop up anywhere else at any time. So wherever unfair elections were discovered, those “certain jurisdictions” would come under scrutiny.
Sections 2, 4 and 5 of the Act are the most critical. Section 2 forbids race discrimination in poll worker hiring, voter registration, and redistricting plans. Section 4 sets out the criteria for determining when a jurisdiction is violating fair elections and voting. And Section 5 states that once your state or territory has been designated as problematic and unfair in its voting and election process, any change with respect to voting there can’t be legally enforced until it’s been reviewed by the U.S. District Court or Attorney General. Any jurisdiction with a proven history of voting discrimination had to prove that the change being proposed is not discriminatory—not just another attempt to prevent minorities from voting freely. The jurisdiction has to prove the absence of racial discrimination, and if it can’t, the proposed change cannot be made law. If the suspect jurisdiction can prove that it has gone 10 years without any voter discrimination, it is no longer subject to Section 5.
The key word in all this, of course, is proof. The suspect locale has to prove it is not discriminatory. This represents a rejection of the federal government’s traditional tactic, post-Reconstruction, of listening to southern political leaders say everything was just fine and there was no threatening or lynching of black voters and saying, Great—that’s good news.”
________
Returning to the present, the Court was reviewing two things: whether racial minorities still face voting intimidation and restriction nearly 50 years after the 1965 Act; and whether it was unfair to keep singling out Southern states for closer inspection than other states. The answer to both these questions was “no”. The current system, says the majority opinion written by Chief Justice Roberts, is “based on 40-year-old facts having no logical relationship to the present day. Congress—if it is to divide the states—must identify those jurisdictions to be singled out on a basis that makes sense in light of current condition. It cannot simply rely on the past.”
That it, we can’t say that since Southern states prevented black citizens from voting during Reconstruction, in the 1870s, those states should still be identified as requiring federal oversight. The problem with this logic is that one does not have to go back to the 1870s to find voter repression in the Southern states singled out (Texas, Louisiana, Mississippi, Alabama, Georgia, Florida, South Carolina, and Virginia). These states were preventing black people from voting in the 1920s, 1950s, 1970s, and today. The history of intimidation, arson, and murder used to prevent black Americans from voting in those states is unbroken from 1865 to 2013.
The proof of this claim is in the hundreds of proposed changes to state voting laws in the Southern states currently pending at the U.S. Department of Justice. It’s in the statements made yesterday by Republican leaders in those states that they will take “immediate action” to not only introduce new laws restricting voting rights, but to revive and pass old laws that were rejected by the Justice Department as infringing on the right to vote.
“After the high court announced its momentous ruling Tuesday, officials in Texas and Mississippi pledged to immediately implement laws requiring voters to show photo identification before getting a ballot,” reports the Houston Chronicle. “North Carolina Republicans promised they would quickly try to adopt a similar law. Florida now appears free to set its early voting hours however Gov. Rick Scott and the GOP Legislature please. And Georgia’s most populous county likely will use county commission districts that Republican state legislators drew over the objections of local Democrats. …Laughlin McDonald, who heads the American Civil Liberties Union’s voting rights office, said he agrees that pending submissions to the Justice Department are now moot. It’s less clear what happens to scores of laws that the feds have already denied since the 2006 reauthorization.”
The Southern Republicans in question say that the ruling is a validation of their states’ move away from racial discrimination, an acknowledgement that times have changed. In one way they are right: over the past 20 years, Southern politicians widened the scope of their ambition to attempt to prevent not just black Americans from voting, but the poor, elderly, and Latino as well—all groups they perceive as voting for Democratic party. They have moved away from purely racial discrimination to a much broader discrimination.
Chief Justice Roberts, writing for the majority, said, “Voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, ‘the Act imposes current burdens and must be justified by current needs.’”
This is the linchpin of the argument against the VRA: that it is unconstitutional because it only imposes oversight on Southern states. In 1965, only Southern states flagrantly defied federal law to prevent black people from voting, yet as we noted above the Act does not just apply to the South. It applies to “certain jurisdictions” where voters’ rights have been infringed upon. That can be anywhere. For many decades it was only in the South, but again times have indeed changed, and now states all over the country are eagerly introducing voting rights infringement laws, as the drive to prevent perceived Democratic voters from participating in elections spreads.
To basically gut the VRA because people claim it is unequally applied, while confirming that the problem the Act solves—voting discrimination—is still a problem is a move so contrary to common sense that it must call into question the majority of the Court’s commitment to voting rights.
In his perceptive and deeply researched book African Americans Confront Lynching, Christopher Waldrep traces the struggle black anti-lynching activists undertook from the late-1880s on to get the federal government to pass anti-lynching laws and enforce those laws on the state level. The NAACP later worked to do the same for segregation laws. The problem they all faced was that the federal government left enforcement of the few national civil rights laws passed after the Civil War (the Thirteenth, Fourteenth, and Fifteenth Amendments, or “Reconstruction Amendments”) to the states. The Southern states would not enforce these laws, and the federal government knew it. But rather than make the effort and fight the enormous fight to get those states to obey federal law, the national government allowed them to bray that any attempt to enforce federal law in the states was a violation of states’ rights. In this way Southern states openly and proudly violated federal law, and a weak federal government allowed them to do so.
Laws like the Voting Rights Act of 1965 finally brought badly needed federal oversight to state practice. Now that Act is basically being rescinded, on the grounds that “we’ve come a long way” and no one is racist anymore—or yes, there are still racists, but this Act isn’t the right tool to stop them. What is the right tool? No one knows. That part is left unexplored, as the Supreme Court takes away a established protection without offering a new one. It seems to be part of the de-regulation drive, the small government mania, that says the federal government should simply cease to exist and leave everything to the states. If the problem was that only nine states had to undergo oversight, why not simply extend it to all 50 states? It is impossible that the Court does not realize that it is returning those nine Southern states to the pre-1965 past, when they were free to prevent people from voting as they saw fit, without fear of retribution. Worse, they are introducing the 41 other states to that status. Now every state in the Union can defy federal law with little consequence.
Should states be punished for past actions? Yes, if those actions are still being attempted in the present.
Should only Southern states receive federal oversight? No; all states should be monitored for compliance with the Constitution.
Should we get rid of laws that have helped end discrimination simply because they are working? No—you don’t stop taking medicine because it is working. You take it until your disease is gone.
This decision is a blow to the Constitution. It is a vote against liberty and justice for all, for political equality, and for voting rights. It is not completely unexpected—the principles of liberty and justice for all go against human nature, and there will always be people who don’t accept them. The United States was founded on its citizens’ decision to accept those principles, and fight for them. They can’t be inherited—they are too opposed to human nature to be inherited. Each generation must weigh them, accept them, and fight for them. That’s what keeps the United States going, that’s what makes us Americans: we inherit the fight for justice. Now is our time to fight for voting rights, in all our states, for all our citizens. It is our time to stake a claim for our founding principles, and live up to our responsibilities, by fighting across this country, wherever we live, for free access to polling places, reasonable wait times, sensible hours of operation for polling places, voting by registration alone (not voter IDs), clear ballots, and honest vote reporting. We will win this fight, because it speaks to our deepest sense of what is right. It may take a while, and it may be depressing to think that over 200 years since the Constitution was written we are still battling for basic rights, but we must remember what a great American once said: the arc of the moral universe is long, but it bends toward justice.
The Historic Present 