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

By Andrew Cohen

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.

'I Don't Want to Draw "Nigger" Districts'

The Voting Rights Act has been so successful over the decades in part because its main provisions interact so sensibly with one another. Section 2 prohibits racially discriminatory voting practices and procedures -- and gives private citizens the right to sue to enforce the law. Section 4 sets out the criteria for when a jurisdiction has to seek federal approval for new voting rights laws -- and when a "covered" jurisdiction can "bailout" of its obligations under Section 5.

Under Section 5, officials in a "covered" jurisdiction must prove to the satisfaction of federal officials that a "proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group." Nine states -- including Alabama, the home of Shelby County -- are completely "covered" by the section. Five other states have only certain counties which are covered. Two states have only certain townships which are covered. Despite systemic voter suppression efforts over the past few election cycles, neither Ohio nor Pennsylvania are "covered" jurisdictions.

Opponents of the act say it's no longer necessary because there is less racial discrimination in voting laws than there once was. This is undoubtedly true. But there is still an astonishing level of racial discrimination in voting laws. Since 1982, the feds told the justices in their Shelby County brief, "... approximately 2,400 discriminatory voting changes had been blocked by more than 750 Section 5 objections, approximately 400 of which involved cases with specific evidence of intentional discrimination." Without Section 5, the feds argue, minority voters would have had to sue individually, at great cost of time and money, in some cases after having lost their right to vote. Like it was before the passage of the statute.

When he reviewed the record in this case, in writing the ruling that is now before the Supreme Court, D.C. Circuit Court of Appeals Judge David S. Tatel described some of the facts that confronted members of Congress in 2006 when they were debating Section 5's renewal. "The legislative record also contains examples of overt hostility to black voting power by those who control the electoral process," Judge Tatel wrote:

On Mississippi, for instance, state legislators opposed an early 1990s redistricting plan that would have increased the number of black majority districts, referring to the plan publicly as the "black plan" and privately as the "nigger plan." (Modern Enforcement of the Voting Rights Act: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 22 (2006) ("Modern Enforcement") (internal quotation marks omitted); see also S.Rep. No. 109-295, at 14.

In Georgia, the state House Reapportionment Committee Chairman "told his colleagues on numerous occasions, 'I don't want to draw nigger districts,'" H.R.Rep. No. 109-478, at 67 (quoting Busbee v. Smith, 549 F.Supp. 494, 501 (D.D.C.1982)). The district court pointed to numerous additional examples of intentional discrimination in the legislative record. See Shelby Cnty., 811 F.Supp.2d at 472-76, 477-79, 480-81, 481-85, 485-87; see also Nw. Austin, 573 F.Supp.2d at 258-62, 289-301

Judge Tatel is an appointee of President Bill Clinton, but Section 5 of the Act has been consistently upheld by lower court appointees of Republican presidents. For example, at the trial level in the Shelby County case, U.S. District Judge John Bates, an appointee of President George W. Bush, rejected the county's arguments against Section 5. So did D.C. Circuit Judge Thomas B. Griffith, another appointee of President Bush, when he joined Judge Tatel's ruling. It is therefore mostly the language of Chief Justice Roberts's majority opinion in Northwest Austin, and Justice Thomas' concurrence, which explains why many voting rights experts believe today that Section 5 is in trouble in Shelby County.

It is "undeniable," the Chief Justice wrote in the 2009 decision, that the law has been successful. But it "imposes substantial federalism costs" and challenges the "historic tradition that all States enjoy equal sovereignty." Because Section 5 "imposes current burdens" it "must be justified by current needs," the Chief Justice wrote, adding:

The evil that Section 5 is meant to address may no longer be concentrated in jurisdictions singled out for preclearance. The statute's coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.

Congress, the Chief Justice wrote, "heard warnings from supporters of extending Section 5 that the evidence in the record did not address 'systematic differences between the covered and non-covered areas of the United States[,]... and, in fact, the evidence that is in the record suggests that there is more similarity than difference."

It worries supporters of the Voting Rights Act that the Chief Justice (and, at least, Justice Thomas, too) believe there is "considerable evidence" that Congress failed to properly do its job in addressing the "systematic differences" between Section 5's "covered" and non-covered jurisdictions. One subtext to next week's argument will be the question of how much judicial deference is warranted when reviewing a federal statute backed up by page upon page of facts like this: It's a matter of record now that the vast majority of Section 2 voter discrimination cases -- 81 percent -- were brought in jurisdictions "covered" by Section 5.

Alabama "still grapples with race-relations issues," the state lawyers told the justices, "but they are the same kinds of issues every State currently is endeavoring to solve."

The concept of "unequal state protection" from federal authority is the rationale that Shelby County and its conservative supporters have put forth in the current case. Congress was acting illogically when it renewed Section 5, these advocates argue, and the Supreme Court should intervene to save the "covered" jurisdictions from the yoke of federal tyranny. "The Constitution grants Congress power to enforce the Reconstruction Amendments, not rewrite them," Shelby County's lawyers wrote in their brief. "The Court thus must draw 'the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law.'"

We know where Justice Thomas stands on the issue. He is almost certainly going to vote to strike down Section 5. There is only a little doubt, too, where the Chief Justice's sympathies lie. And during oral argument in Northwest Austin, Justices Samuel Alito, Antonin Scalia, and Anthony Kennedy all also expressed disdain for the Congressional findings behind the 2006 renewal -- and concern over the idea of the need for "equal sovereignty" among the states. Justice Kennedy was especially blunt:

Yet the Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereign dignity of Alabama, is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments than [sic] the other.

'Not an Uncovered States of America and a Covered States of America'

Even though Section 5 survived Northwest Austin, it was immediately clear that the Court had issued an invitation for future challenges. It was also plainly evident following the ruling which arguments were likely to maintain traction among the Court's conservatives. This surely explains why Alabama, filing a friend of the court brief last month in the Shelby County case, began its argument by mocking President Barack Obama's famous campaign line concerning health care. "In 2013," Alabama's lawyers wrote, "there should not be the Uncovered States of America and the Covered States of America. There should be the United States of America." A federal law should cover all people, everywhere, in each state and county, Alabama argues.

The state's pitch to the Court is extraordinary given Alabama's history and the pattern and practice of official discrimination in voting which continues to exist today. "Alabama has a new generation of leaders with no connection to the tragic events of 1965," the state's lawyers told the justices. "The effects of those events on voting and political representation have now, thankfully, faded away.These on the ground realities show that the 2006 Congress abdicated its constitutional responsibilities when it simply reimposed, on Alabama and other States ready to be equal partners in the Union, burdens that previously were necessary and appropriate only because of a defiance and recalcitrance whose vestiges no longer exist."

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In support of this proposition, Alabama told the Court that "African Americans compose a percentage of Alabama's legislature that reflects the overall population numbers in the State" and that the Justice Department "has not objected to a statewide preclearance submission from Alabama in 16 years." Alabama "still grapples with race-relations issues," the state lawyers told the justices, "but they are the same kinds of issues every State currently is endeavoring to solve. The recalcitrance and defiance are now gone."

For its part, Shelby County, the actual petitioner in the case, had dug deeper into the factual bases for Congress's 2006 renewal of Section 5 and for its "coverage formula under Section 4(b). "At most," the county's lawyers told the justices, "the 2006 legislative record shows scattered and limited interference with voting rights, a level plainly insufficient to sustain Section 5 preclearance. Congress," they told the justices, "needed to find that Section 5 was justified under actual conditions uniquely present in the covered jurisdictions; it could not proceed from an unsubstantiated and unbounded assumption that the covered jurisdictions have a latent propensity to discriminate that does not exist elsewhere in the country."

"Section 2 and racially polarized voting occur nationwide," Shelby County now argues. "If Congress were serious about imposing preclearance on jurisdictions where such problems are most prominent, States like New York, Illinois and Tennessee would have been covered instead of many (if not most) of the covered jurisdictions." This also is a theme that resonates throughout many of the dozens of briefs filed in opposition to the act. "Nothing in the legislative record indicates that more traditional and less intrusive remedies... are an inadequate solution for the residuum of voting discrimination." Those "less intrusive remedies," of course, were the very ones that failed to bring justice for a hundred years after the Civil War gave a "new birth of freedom" to the exercise of the right to vote.

'Purposeful Discrimination' Persists Today

The cheery view of voting discrimination in Alabama, the one offered by Alabama officials seeking to justify their own policies, is seemingly at odds with the evidence as Congress saw it back in 2006. In their brief filed on behalf of black residents of Shelby County, lawyers for the NAACP Legal Defense and Education Fund (NAACPLDF) list ten pages worth of voting rights violations committed by Alabama officials in the years leading up to Congress's 2006 renewal of the Voting Rights Act. "During the re-authorization period," from 1982 to 2006, the lawyers wrote, "nearly 240 discriminatory voting laws in Alabama were blocked by Section 5 objections (46) or remedied by Section 2 litigation (192)."

The NAACPLDF then reminded the justices that the Supreme Court has twice since 1982 "found purposeful racial discrimination in Alabama" on voting rights and that other federal courts, including the Southern-based 11th U.S. Circuit Court of Appeals, also have "found intentional discrimination in voting in Alabama. From a 2011 case, the civil rights lawyers offered this nugget:

In United States v. McGregor, 824 F. Supp. 2d 1339, 1347 (M.D. Ala. 2011), the court found "compelling evidence that political exclusion through racism remains a real and enduring problem in [Alabama]," "entrenched in the high echelons of state government." The court rejected testimony by several white Alabama state legislators as lacking credibility, finding they were motivated by "pure racial bias" as they sought to "reduc[e] African-American voter turnout." Id. at 1345. Several white legislators and their interlocutors were caught on tape comparing Black voters to "illiterate[s]" and "Aborigines." Id.

On and on the brief goes, listing examples where the Alabama of today acts very much like the Alabama of George Wallace's day. Even in instances where local Alabama jurisdictions entered into consent decrees with federal officials to adopt new election methods free from "racist effect," the NAACPLDF told the justices, "numerous jurisdictions, including Shelby County and one of its largest municipalities, attempted to circumvent these decrees." Thus the same local officials who argue that the law is no longer necessary because voting problems no longer exist are the ones who have proven its worth by trying to violate it.

If the NAACPLDF brief offers the legal view of the continuing need for Section 5 in Alabama and other covered areas, an amicus brief filed by the Alabama Legislative Black Caucus and the Alabama Association of Black County officials sends the Court a powerful message about what life is like today for black state and county elected officials in Alabama. These men and woman, write their lawyers, "are engaged in the day-to-day struggles to advance the interests of their constituents in a social, political and legal environment that is still dominated by the vestiges of official racial discrimination..."

And federalism? Here the black officials in Alabama have an answer as well. The justices should respect the judgment of those federal lawmakers from the state who voted in favor of the Voting Rights Act, including Section 5. Both of Alabama's Republican senators, Jeff Sessions and Richard Shelby, voted in favor of renewal. "The point here," the civil rights lawyers argue, "is that black Southerners and the members of Congress they elected were able to convince the vast majority of other members of Congress that the need for the exercise of power granted Congress by Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment still outweighs the sovereignty objections of the Southern states."

For its part, the Justice Department brief is light on rhetoric and heavy on the notion that the Supreme Court should stop meddling with a core Congressional function. "The decision to reauthorize Section 5 ultimately rests on empirical assessments of social conditions and predictive judgments that the Constitution entrusts to Congress," federal lawyers told the justices, "and those judgments should receive great deference." In other words, the Justice Department argues, the Voting Rights Act may not be perfect but no law is. Here's an illustrative paragraph:

Congress also gathered evidence of voting discrimination from outside the Section 5 process, including successful Section 2 suits filed against covered jurisdictions; continued disparities between minority voters' registration and participation rates as compared to those of non-Hispanic white voters; the Attorney General's experience in certifying and dispatching election observers; the persistence of severe racially polarized voting in covered jurisdictions; and the testimony of experts, voters, and practitioners about ongoing intimidation, harassment, voter suppression and intentionally dilutive practices by covered jurisdictions.

2010-2012

One of the great ironies of the Shelby County case is its timing. When county officials filed their declaratory action in April 2010 they had every reason to think that Section 5 was dead in the water. The justices indeed had just issued a year earlier, in Northwest Austin, an invitation to attend the wake. At that point, the remedies and the protections of the Voting Rights Act were something Americans took for granted -- every registered citizen could vote, right? For millions of people concerned about civil rights, the battleground in 2010 was over same-sex marriage or even health care.

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Waiting in line to vote in Miami in 2012 (J. Pat Carter/AP)

But a funny thing happened to this challenge on its way to the Shelby County case. The entire landscape of voting rights changed in a relative blink. And the change restored and renewed the Act by reminding hundreds of millions of Americans, a whole new generation of voters, of the purpose and effect of the old law. So far no one has come up with an accurate count (or even a reliable ballpark figure) of how many Americans got to vote last election because the Voting Rights Act protected them from state or local election laws that would have disenfranchised them. But considering the number of successful challenges, not to mention the deterrent effect noted below, the number cannot be low.

This, too, should not have come as a surprise to the law's most ardent foes, for they are to blame for reminding the American people that their right to vote was not nearly as sacred as they thought it was. Over the past three years, since Shelby County accepted the Supreme Court's latent invitation and began its march to Washington, conservative officials all over the country have acted as though the Voting Rights Act actually had been struck down by the Supreme Court in Northwest Austin. For example, of the nine states covered in their entirety by Section 5, lawmakers in six of them passed restrictive new voting laws since 2010. That's also a stubborn fact likely to come up in court next week.

Things may "have changed in the South" over the past few decades. But 2012 showed they haven't changed nearly as much as the Chief Justice would like to think.

Then there is this. Last summer, as the more odious of these laws began to wend their way through the federal courts, one respected judge after another, appointees of both Republican and Democratic presidents, heralded Section 5 of the Voting Rights Act as a necessary tool to prevent voter discrimination. For example, last August, in a unanimous ruling in federal court in Washington, Section 5 of the act was successfully invoked to stop enforcement of a draconian Texas' voter identification law, a measure that would have forced poor and elderly citizens, without their own means of transportation, to travel great distances during working hours to obtain a state ID from offices the hours of which had specifically been limited by the state legislature.

The Voting Rights Act was invoked successfully to stop Florida officials from reducing early voting hours in a way that disproportionately impacted minority voters. And the federal law helped ease the burden on voters in South Carolina, too. Although a three-judge federal panel in Washington ultimately agreed to permit South Carolina officials to begin to implement their restrictive new law after the 2012 election, and after they remedied its many deficiencies. U.S. District Judge John D. Bates, an appointee of President George W. Bush and the author of the initial ruling in Shelby County, made sure to remind the justices that his views on the subject of the act had not changed:

One cannot doubt the vital function that Section 5 of the Voting Rights Act has played here. Without the review process under the Voting Rights Act, South Carolina's voter photo ID law certainly would have been more restrictive. Several legislators commented that they were seeking to structure a law that could be precleared.

So if the Supreme Court strikes down Section 5, it won't just disappoint one of the most conservative federal trial judges in the country. It won't just minimize the significance of the law's impact upon the 2012 election. It will also encourage lawmakers in states like South Carolina to "structure" their voting laws without the burden of worrying about an initial round of review by federal election officials. Logic -- and history -- suggest this will disenfranchise minority voters. Moreover, without Section 5, the evidentiary burden of challenging this new generation of voting laws will fall not upon the local officials seeking to implement the new measures but upon those effectively disenfranchised by them. Like the way it was before the Act was enacted in August 1965.

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Waiting in line to vote in 1965 (Library of Congress)

Last year, writing about voting rights, I came across many stories of registered voters whose lives were upturned by these voter suppression efforts. In South Carolina, for example, I came across a Vietnam veteran named Craig DeBose. A longtime resident of the state, he did not own a car, and thus did not have a state-issued photo identification. So he traveled 11 hours from home by train to come to Washington, D.C. to testify at his Section 5 trial. "And why did you come all this way to tell the Court your story?" he was asked at the witness stand. "So I can vote," DeBose replied. A Supreme Court ruling striking down the Voting Rights Act will strike down the rights of men like Craig DeBose, because it will deny him the ability to use Section 5 to block unconstitutional restrictions on his ability to vote.

It is true that partisan officials in other states, "uncovered" jurisdictions, also have recently enacted and sought to implement restrictive new voting regimes. The most egregious examples of these measures occurred in Ohio and Pennsylvania, where Republican officials gave voice to some of the more pernicious notes of racism evident anywhere during the 2012 campaign. Shelby County argues that these examples of racial discrimination in voting, in "uncovered jurisdictions," means that the Voting Rights Act is constitutionally under-inclusive. If the Supreme Court considers this argument decisive, it would jeopardize all sorts of legislative action, since so little of it can ever be entirely inclusive.

Shelby County is correct to point out that recent voter suppression efforts, with their racially discriminatory intent or effects, are not limited to a single state or region of the country. But the argument that Section 5 is dated is still far more difficult to make today, after the 2012 election cycle. Things may "have changed in the South" over the past few decades, as Chief Justice Roberts wrote in Northwest Austin. But the lesson of 2012, visible to the naked eye in federal courtrooms and at local polling stations, is that things haven't changed nearly as much, down South or anywhere else in this racially polarized nation, as the Chief Justice would like to think.

The Supreme Court

What do we really know on the eve of the argument in Shelby County v. Holder? We know that racial polarization has intensified during the Obama Administration. Citing the work of four professors at four separate universities, Thomas Edsall recently noted the presence of a "statistically significant increase from 2008 to 2012 in 'explicit anti-black attitudes'" around the country, especially among Republicans. Many of those Republicans are the ones who sponsored and enacted some of the voter suppression laws of the 2012 cycle.

And we know that this is the most conservative Supreme Court since the 1930s. We know the Court invited many of the state voter suppression efforts of the past three years when it issued its ruling on Indiana's voter identification law in Crawford. We know, too, that the Court encouraged in its Northwest Austin ruling, and in other rulings over the past decade, a level of constitutional disdain for the Voting Rights Act that had not existed since 1965. Having created the factual and legal conditions to undermine the federal law, the Court now is poised to say that it is weakened beyond repair.

In a recent issue of The Nation, Ari Berman, who has doggedly covered the voter suppression beat over the past few years, concludes that "the current campaign against the [Voting Rights Act] is the result of three key factors: a whiter, more Southern, more conservative GOP that has responded to demographic change by trying to suppress an increasingly diverse electorate; a twenty-five-year effort to gut the VRA by conservative intellectuals, who in recent years have received millions of dollars from top right-wing funders, including Charles Koch; and a reactionary Supreme Court that does not support remedies to racial discrimination."

If the Court strikes down Section 5 of the Voting Rights Act, this year especially, given the record of the past three years, the justices who do so will reveal a disconcerting level of disconnect from the realities of modern American politics as they were expressed in the near-unanimous renewal of the Act in 2006. And the partisan ruling they would issue in this circumstance would be even more brazenly ideological and untethered from precedent than the Citizens United ruling issued in January 2010. To say that "things have changed in the South," or anywhere else in America for that matter, is the truth about voting rights. But it is not the whole truth. And it is certainly not nothing but the truth. A Supreme Court ruling that strikes down one of the most popular and successful laws in the nation's history should not be based upon such duplicity.

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Pablo Martinez Monsivais/Reuters

But it very well may be. It seems clear that the case will turn now on whether any of the Court's conservatives have changed their minds about Section 5 since Northwest Austin was decided; whether those justices saw in the great voting rights battles of 2012 a renewed purpose to and justification for Section 5. The Chief Justice gave himself a political out, in Northwest Austin, when he wrote that "it may be that" that the improvements wrought so far by the Voting Rights Act "are insufficient and that conditions continue to warrant preclearance." Fair enough. But this is also the man who even 30 years ago -- a period in which all parties now agree was filled with intentional racial discrimination in voting -- was fighting within the Administration to reject the 1982 renewal of the statute; fighting for it even after the Reagan White House had decided to embrace the Act's renewal.

Ask yourself, then, in light of the transcript of the Northwest Austin argument, which conservative justice -- which fifth vote -- is going to undertake the sort of soul-searching it would likely take to save the act? When confronted with some of the very evidence civil rights lawyers offer up in Shelby County, Justice Kennedy conceded that it made a "good demonstration of discrete discriminatory acts." But "my concern," he still told the lawyers, "is that it's just not clear to me that Congress addressed this for the rest of the country." Justice Alito echoed this concern. And the Chief Justice himself said, of Section 5's renewals: "Well, they said five years originally and then another 20 years. I mean, at some point it begins to look like the idea is that this is going to go on forever."

And then ask yourself whether you would be less surprised to read, instead, the language of a 5-4 majority opinion in Shelby County that states that Congress must cover all American jurisdictions under Section 5 if it is going to cover any jurisdictions under Section 5. Such a ruling would place upon this do-nothing Congress an impossible task -- and the justices who would endorse it know that. As Rep. Henry Hyde, the legendary Illinois Republican, said during the legislative fight leading up to the 1982 renewal of the act: nationalizing the Section 5 standard would "strengthen the law to death" by making it national in scope and thus over-stretching the federal resources necessary to enforce it.

The argument next week will turn on questions of how much weight and respect are due to Congress's 2006 findings that preceded the last renewal. But the act's success cannot simply be measured merely by counting the number of black officials who have been elected since 1965 or the number of minority voters who have been registered since then. It cannot be measured merely by how it treats some jurisdictions different from others. It must also be measured by the ways in which minority voters still rely upon Section 5 to preserve and protect their rights to vote. Since 1982, the record tells us, 2,400 discriminatory voting changes were blocked by 750 Section 5 challenges.

Although they no longer find a voice in Congress, although they have been squeezed out of the mainstream of political thought, the conservative forces arrayed against minority voters have not rested since 1965. They have not given up and embraced the principles of broad voting rights. They have instead pushed forward, often with cynical intent, seeking at every turn to restrict the scope of the act. A Supreme Court ruling striking down Section 5 would unilaterally disarm federal officials, disabling their ability to effectively fight for minority voting rights at the precise historical moment when those rights are being jeopardized again by new a new generation of suppression efforts. Rewarding vote suppressors, it would strip away from millions of citizens the greatest legal defense they have ever had to protect their right to vote.

Thanks to hundreds of those overzealous state lawmakers, who jumped the gun after Northwest Austin and Crawford, who enacted odious laws that jeopardized the ability of millions of registered voters to cast a ballot, we've already been treated to a glimpse of the future without the core of the Voting Rights Act. It is very grim, indeed. No wonder Rep. John Lewis, the civil rights icon and longtime Democratic member of Congress from Georgia, said last summer that "all of us should be up on our feet" making a ruckus about partisan voting restrictions. The good news is that federal lawmakers have heard those cries and done something about it. The bad news is that the Supreme Court has heard those same cries, and seems poised to do something about it as well.


This article available online at:

http://www.theatlantic.com/national/archive/2013/02/after-50-years-the-voting-rights-acts-biggest-threat-the-supreme-court/273257/