After 50 Years, the Voting Rights Act's Biggest Threat: The Supreme Court

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One of the most popular and successful federal laws in America survived decades of partisan congresses and administrations. Next week, the justices may finally dismantle it.

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Kheel Center/Cornell University/Flickr

At 10 a.m. next Wednesday, the justices of the United States Supreme Court will hear oral argument in a case styled Shelby County v. Holder, one of the most anticipated of the current Term. Agreeing to review an argument made by an Alabama county that it ought finally to be free from one of the key requirements of the Voting Rights Act of 1965, the justices will have an opportunity both to lead and to follow the nation as it roils anew in political and legal battle over the rights of the poor, the ill, the young, the car-less, the black, the Hispanic, and the Native American to vote.

Nearing its 50th birthday, the act has become a part of our national lore. One of the crowning achievements of the civil rights movement (and of the Johnson Administration), it was designed by its creators to finally give meaningful legal remedies to minority citizens -- blacks, mostly, but not exclusively -- who for generations had been precluded from voting (or from having their votes fairly counted) by a dizzying flurry of discriminatory state practices. The act didn't just expand the scope of existing federal civil rights laws. It completely changed the dynamic between voters and state and local governments. And the results are indisputable: There is far less discrimination in voting today than there was half a century ago -- and many millions more minority voters.

As a technical matter, the central question the justices have been asked to resolve in Shelby County is whether Section 5 of the Voting Rights Act, the "preclearance" provision which requires officials in certain jurisdictions to seek federal approval before any new election law may be imposed, is still a valid exercise of Congress' power to enforce the Fourteenth and Fifteenth Amendments. If the Court says no, one of the act's most valuable shields will be destroyed, and millions of Americans of color in 16 states will immediately have less legal protection from racially tinged voter laws and redistricting efforts.

Surely the justices cannot be surprised that a nasty political war has broken out over the means and manner of voting. After all, the Court is largely responsible for it.

As a matter of timing, the Shelby County case comes to the Court less than one year after the justices narrowed the scope of Congressional power under the Commerce Clause even as a narrow majority upheld the Affordable Care Act. In Shelby County, the justices are similarly being asked by conservative lawyers and local officials to overrule the judgment of Congress that the core of the Voting Rights Act continues to be necessary to protect the rights of minority voters. That legislative judgment could hardly have been more clear: When the Act was last renewed in 2006 (the fourth such renewal since 1965), the margin was 390-22 in the House of Representatives and 98-0 in the Senate.

And Congress' renewal could hardly have been accompanied by more diligence. "Congress held 21 hearings, heard from scores of witnesses, and amassed more than 15,000 pages of evidence regarding ongoing voting discrimination in covered jurisdictions," Obama Administration lawyers have reminded the justices. Those findings, the feds now argue, are entitled to great judicial deference, even if imperfect, and even if the resulting legislation only covers certain portions of the country with a long history of discrimination in voting practices.

Indeed, the current challenge comes to the Court immediately following an election season which reminded any reasonable observer that the right to vote is still very much an open question in America. From 2010 to 2012, in red and blue states alike, restrictive new voter identification or registration laws were enacted -- and promptly challenged in court. So too were dubious redistricting efforts. Many of the most nakedly partisan efforts were struck down or delayed by state judges. Other discriminatory voting rules and regulations were blunted in federal court by Section 5 of the Voting Rights Act itself -- a sharp prebuttal to the argument that the provision has outlived its usefulness.

Since the 2012 election, meanwhile -- since the justices agreed to hear the Shelby County case -- partisan efforts to disenfranchise whole groups of people have continued. Politics explains part of this. Until last summer, for example, stringent voter identification laws were broadly sponsored by a conservative group, the American Legislative Exchange Council. But growing racial polarization, tracked by substantive new research, also has played a role. The evidence suggests that the Obama presidency has widened the racial gulf in America -- and, at the same time, stoked tensions over how and which Americans should be allowed to vote.

Surely the justices cannot be surprised that a nasty political war, with strong racial undertones, has broken out over the means and manner of voting. After all, the Court is largely responsible for that development. For the past 30 years, an increasingly conservative Court has consistently sought to trim the Voting Rights Act. And in the past five years, the Court has issued two decisions which have sharply narrowed the scope of protection for minority voters. In 2008, in Crawford v. Marion County, a case which did not turn on the federal law, the Court endorsed Indiana's voter identification law. The mere threat of voter fraud, the justices concluded, without any actual proof of such fraud, was enough to justify new burdens on voters, burdens often felt most sharply by minority groups. The Crawford ruling begat scores of similar voter identification laws around the nation.

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An advertisement for Pennsylvania's voter ID law in September 2012 (Keith Srakocic/AP)

And in 2009, in Northwest Austin Municipal Utilities District v. Holder, the Court held by an 8-1 vote that a small Texas jurisdiction could "bail out" of its preclearance obligations. Although the justices avoided the constitutional question they appear ready to confront in Shelby County, the transcript of the oral argument in Northwest Austin reveals palpable hostility toward the act and the way it continues to burden different jurisdictions differently. Why, Justice Samuel Alito asked during the oral argument in Northwest Austin, didn't Congress just extend Section 5 "to the entire county?" It's a question he is likely to ask again in Shelby County.

The Crawford decision signaled that onerous voter identification laws around the country would be upheld upon judicial review. The Northwest Austin decision signaled that the heart of the Voting Rights Act, impervious as a political matter, was again in play as a matter of constitutional law. Justice Clarence Thomas, a black man born in the "covered jurisdiction" of Georgia, wrote in dissent in Northwest Austin that he was ready to strike down Section 5. And Chief Justice John Roberts noted in sympathy to the law's challengers that "things have changed in the South."

Things indeed have changed -- Americans no longer are killed or injured for trying to vote. But how much things have changed, and what to make of those changes, is at the heart of the Shelby County case. So too is this puzzling possibility: Having lost the political argument over the Voting Rights Act, having seen their arguments become untenable on Capitol Hill, are conservative opponents of the law really that close to convincing the conservative justices of the Supreme Court to strike down the statute? If so, it would that mean that one of the most popular and successful laws in American history would be gutted by five unelected judges, all of whom are Republican appointees.

From 1965 to Today

We tend to see it as a static event -- a moment frozen in time -- but the passage of the Voting Rights Act of 1965 is better described as a huge leap forward in the direction in which the law already had been moving. By 1965, Michael Klarman tells us in his dogged account of race and the law From Jim Crow to Civil Rights, the Supreme Court and lower federal court judges had begun to routinely strike down discriminatory voter laws, especially in the South. And, as Robert Caro details in Master of the Senate, Lyndon Johnson as Senate Majority Leader had by 1957 pushed through Congress the first voting rights legislation since 1875. That the 1957 law was largely toothless made it no less historic. It was the beginning of something big.

It is undeniable that the Voting Rights Act dramatically sped up the process of preserving and protecting the vote for minority citizens. How much has been achieved? "In some circumstances, minorities register to vote and cast ballots at levels that surpass those of white voters," noted a 2006 House Report which accompanied the act's renewal. But the law was -- and still is today -- a means and not an end. And in the same way that opposition to integration did not immediately end following the Supreme Court's 1954 decision in Brown v. Board of Education, opposition to minority voting rights did not magically disappear with the enactment of the Voting Rights Act. In many important ways -- right down to the argument that Section 5 is unconstitutional because it treats states unequally -- the conflict has never really gone away.

In Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy, a book which will be published soon, Gary May, with great detail, takes us through the political machinations that washed up on the Voting Rights Act after 1965. As May reminds us, state and local officials in "covered" jurisdictions in the South (and, later, the West) always have resented the special evidentiary burdens they have borne under the act. Officials in those jurisdictions also have made the same federalism arguments that animate the Shelby County case. This was true in 1970, when racial discrimination in voting was still pervasive; and it was true in 1982, when the Reaganites took a whack at the law; and it was true in 2006.

Just four years after its passage, May writes, the Nixon Administration sought to weaken the core of the new act by limiting its renewal period to three years, putting the burden of proof back on the federal government to establish voter discrimination patterns, and getting rid of Section 5 altogether. A raucous Congressional battle ensued. When it was over, Southern Democrats had succeeded at least in nationalizing the statute's ban on literacy tests as a prerequisite for voting. Civil rights advocates had hoped for better but feared worse. And when President Nixon signed the first extension of the Act in 1970, there was no public ceremony.

There was less political conflict or intrigue when the Voting Rights Act again was renewed in 1975. With more and more minority citizens exercising their right to vote, that year only 56 House members voted against the law -- down from 132 members, most of them from the South, who had so voted when the act first was renewed in 1970. The 1975 version of the act extended coverage beyond Southern jurisdictions, to the West, where Native Americans and Hispanic citizens were for the first time given bilingual ballots and registration material. This time, on renewal day, there was a public ceremony, in the White House Rose Garden.

However, when the act next came up for renewal, in 1982, it faced a concerted political challenge from movement conservatives within the Reagan Administration. (At the time, the administration counted among its many assets a brilliant young Justice Department lawyer named John Roberts, who, contemporary records show, fought hard against the act's renewal; as well as an eager member of the Equal Employment Opportunity Commission, a young ideologue named Clarence Thomas.) One of the act's most ardent foes at the time, William Bradford Reynolds, then the assistant attorney general for civil rights, still has some skin in the game: a conservative activist, he's filed an amicus brief in Shelby County.

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Clarence Thomas at a hearing in 1984, when he was chairman of the Equal Employment Opportunity Commission (John Duricka/AP)

May reveals that Reagan himself had long considered the act to be unconstitutional and a "humiliation to the South." But in the end, after months of drama and a great many mixed messages by the Great Communicator, and thanks to the timely intervention of Bob Dole, Congress extended the law by an overwhelming margin -- and, at the same time, extended its renewal period to 25 years. Congress did so again in 2006, further tinkering with the scope of Section 5 to legislatively overrule restrictive Supreme Court rulings that had been issued in the intervening years. Four times the Voting Rights Act has come up for renewal. Four times it has been renewed. Each time the margin of support for the law has increased.

There are two paradoxes in play here. The first is that while the Voting Rights Act has become more popular politically, it has become less popular among the growing legion of conservative ideologues, including the current majority at the Supreme Court. The act today is mostly vulnerable not in Congress, or even to Republican administrations, but in federal court. Now, the arguments that have consistently failed on Capitol Hill -- specifically the argument that "covered jurisdictions" are unfairly put upon by Section 5 -- have attracted the sympathy of some of the most powerful politicians of all, the life-tenured justices on the only court in America which is not subject to appeal.

The second paradox is that the very success of the act, the fact that it has been invoked so often to thwart so many discriminatory schemes and ruses, has given to its detractors a logically attractive argument: We don't need it anymore. It's done what it was principally designed to do. The problem with that argument is not only that it directly conflicts with the history of the past three years, but that it contradicts the other main argument being made by opponents of Section 5: There is so much voter discrimination in so many jurisdictions not covered by Section 5 that it is no long constitutional to enforce the preclearance provision only against covered jurisdictions.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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