Tag: Supreme Court strikes down Voting Rights Act of 1965

Powerful history of voting rights in North Carolina in a 15-min listen

The WNYC (New York Public Radio) show “The Takeaway” has a great recent episode on the latest expansion of voting rights to former felons in North Carolina–great in large part because of the terrific summary the show created of the battle over granting black Americans their Constitutionally given right to vote that has been waged in the state since Reconstruction–1875 to the present.

Check out the story here: “A Win for Felony Offender Enfranchisement in North Carolina” – click the yellow “LISTEN” button just under the headline to hear the piece, which documents the wins and losses that civil rights activists have had in their battle to uphold the Constitution.

As host and narrator Melissa Harris-Perry notes, the story of un-American attempts to stop black Americans from voting is not unique to North Carolina, or even former Confederate states, nor is it new: it’s a nationwide problem with a long history that every democratic American will naturally condemn.

Go listen and enjoy this well-done piece of history writing!

Why did Americans fight in wars?

There are many correct answers to this question, from the noble to the mundane to the misguided. But we feel confident claiming that making it hard for Americans to vote was never a stated purpose for going to war in the United States.

Texas state representative Jack Enfinger does not agree. We’ll get to him in a moment. For now, the background. We were listening to a story on the radio about Texas Senate Bill 1, which is titled thusly:

An act relating to election integrity and security, including by

preventing fraud in the conduct of elections in this state;

increasing criminal penalties; creating criminal offenses;

providing civil penalties.

It is one of the many state bills that have been or are about to be passed to stop non-white people from voting in the name of correcting election fraud. It’s not a leap to make this statement, as the decisions of the Supreme Court has been openly stating since 2013 and its Shelby County decision that times have changed, non-white Americans no longer suffer from institutional discrimination, and there is no need to keep the Voting Rights Act of 1965.

We posted about this at the time – see The Supreme Court strikes down Section 4 of the Voting Rights Act of 1965. Section 4 of the VRA sets out the criteria for determining when a state/local jurisdiction is violating fair elections and voting. As we said back then,

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 is, 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.’”

There are many things to question here:

If, as the Court claims, voter discrimination still exists, but southern states are no longer the single source of that voter discrimination, then why didn’t the Court expand the VRA to include northern states, rather than kill the VRA?

If the states that wanted the VRA overturned have representatives publicly stating that they would immediately introduce laws that restricted voting, how can the Court state that overturning the VRA will not make voter discrimination worse?

If the VRA is outdated because it’s not current, then what just happened with the Court’s decision in Brnovich v Democratic National Committee?

We won’t go into all of the details of this decision here – you can find an objective, very detailed explanation here at BallotPedia. What we will focus on is the decision’s selection of 1982 as the standard for judging state voting laws: here’s a clear reference from the decision itself:

(B) The degree to which a voting rule departs from what was standard practice when §2 was amended in 1982 is a relevant consideration. The burdens associated with the rules in effect at that time are useful in gauging whether the burdens imposed by a challenged rule are sufficient to prevent voting from being equally “open” or furnishing an equal “opportunity” to vote in the sense meant by §2.

If the problem in 2013 was that an Act from 1965, and thus 48 years old, was too outdated to be relevant (a dubious claim), then how is 1982 okay in 2021? That was 38 years ago, and will only get older.

This discrepancy is just a token for the overall violation of voting rights that the Brnovich decision represents.

Now to circle back to our question about why Americans fought in wars. When we were listening to the radio, we heard many Texas residents saying their piece for and against the legislation. Then we heard state rep Jack Enfinger, of San Antonio, say this:

“This thing about voter suppression is a major false claim—a joke.”

Jack Enfinger, a San Antonio Republican, testified that Texas offers multiple ways to vote, including two weeks of early voting.

“How much more does Texas have to bend over backwards for… the voters? Voting is not supposed to be easy. That’s what our men died for.”

The disdain and incomprehension in Enfinger’s voice when he said “the voters” was remarkable. He makes it very clear that “voters” are a subspecies of American that somehow cannot be equated with “citizens.”

But it’s his claim that American men [sic] fought to prevent Americans from being able to vote easily is so alarming and cray that it takes your breath away. What can it mean? Because the bill in Texas makes it harder for non-white people to vote, the only possible answer seems to be that he’s saying white American men fought and died in foreign wars to make sure that only white American men could ever vote here at home. Americans fought and died in WWII to keep America white.

This is, by now, mainstream, often-heard white fascist content in America (we never thought we’d be saying this in our lifetimes). It hardly causes a stir anymore–since 2020, we’ve become used to fascism in the mainstream. This comment will win Enfinger more Republican support, and otherwise disappear.

But the Supreme Court is on his side, and that’s a problem that’s larger than Texas, and won’t go away. The Shelby decision and the Brnovich decision and the decisions that are coming soon don’t use Enfinger’s direct language, but they are of a piece, and they shore him up and support him.

We seem to end every post the same way lately – do what you can on your local level, vote, protest, get involved in local politics. The minority of people who are passionately devoted to destroying democracy in America are active every day in these ways. SIgn a petition, go to a speech by your representative or a candidate. America has a long tradition of making this relatively easy to do… for now.

The Supreme Court strikes down Section 4 of the Voting Rights Act of 1965

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.