On August 6, 1965, President Lyndon Johnson signed the landmark Voting Rights Act, a centerpiece of the civil rights movement. But 48 years later, the act’s supporters and detractors are engaged in a heated debate after a Supreme Court decision gutted the law.
In the case of Shelby County v. Holder, a divided Court in June invalidated a key part of the Act, which set a formula used to establish which states and towns needed Justice Department approval before changing their election laws. (The formula applied to all or parts of 16 states, including virtually the entire Southern region of the United States.)
"Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions," said Chief Justice John Roberts in sending Section 4 of the Act back to Congress for revision.
Section 4 defined the districts that need “pre-clearance” as having had a voting test in place as of November 1, 1964 with less than 50 percent turnout for the 1964 presidential election. Without Section 4, which the Court struck down, another part of the Act became dormant.
Section 5 prohibits selected districts and states from changing their election laws and procedures without getting official approval from the federal government.
Now, a new formula will be needed to enact Section 5 and it will be up to a deeply divided Congress to approve a new formula.
Among those in attendance when the original act was signed were Dr. Martin Luther King, Jr., and Rosa Parks. This year, Representative John Lewis, the Reverend Jesse Jackson, and activist Al Sharpton were at the Supreme Court arguments.
A key part of the Voting Rights Act wasn’t under consideration at the Court this year: Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in a minority group.
But the lack of a pre-clearance requirement means that the Justice Department can only move against alleged violators of the Act after it determines discrimination has occurred – and not before.
Back in June, two experts said they didn’t expect Congress to act in the near future.
“I think the political realities make this highly unlikely,” said Erwin Chemerinsky, a professor at the University of California, Irvine School of Law, on a conference call after the decision. “What formula can you get a majority of Congress to approve?”
“The reason we will not see Congress act is politically they are unwilling to,” said Roger Clegg from the Center for Equal Opportunity. Clegg said the Court warned Congress in a prior decision that it had to rewrite Section 4 and Congress never acted.
But six weeks later, there’s been slow movement in the Capitol on the issue.
Attorney General Eric Holder is pursuing legal action against the state of Texas using another part of the Act, Section 3. The Justice Department will need to prove in court that Texas used intentional discrimination, in violation of the 14th and 15th Amendments, when it drew up new congressional districts.
Last Monday, civil rights leaders met with President Barack Obama to press the issue.
"We had a great alarm when the Supreme Court ruled against Section 4 of the Voting Rights Act but after meeting with the President and the Attorney General we were assured that the Voting Rights Act may be wounded but it is not dead. It is not even critically wounded; it can and will be revived,” said the Reverend Al Shaprton.
But the Reverend Jesse Jackson, in an online commentary, called for a Voting Rights amendment to the Constitution.
“As we mark the anniversary of the Voting Rights Act, it’s time to make certain that the right to vote, the foundation of any democracy, is defined and protected in our Constitution,” Jackson said.
Editorial writers around the county were also confronting the changes in the Act.
In Florida, the Tampa Bay Times was questioning if the state of Florida would use the Supreme Court ruling to purge voter rolls in the state.
“Of course noncitizens should not be allowed to vote in Florida. But Holder should review Florida's situation and be prepared to go to federal court if the state fails to protect the voting rights of minority citizens as it seeks to purge the rolls,” the newspaper said.
The Baltimore Sun also took the Court to task in an editorial on Monday.
“The short-sighted action by the Court's conservative majority threatens to turn back the clock for millions of black and Hispanic voters in states with a past history of discrimination and demands a vigorous response from the Justice Department to protect the right to cast a ballot,” it said in an editorial.
To be sure, there hasn’t been a shortage of conservative opinions about the power of the Court’s ruling to help states combat alleged cases of voter fraud.
And the attorney general of Texas, Greg Abbott, said in an editorial in the Washington Times that it was President Obama who was harming the Voting Rights Act.
“After the Shelby County decision, the Voting Rights Act still works. It just no longer imposes an onerous and costly pre-clearance requirement that disrupts the state-federal balance of power enshrined in the Constitution,” Abbott said. “Instead of allowing the Voting Rights Act to work in a way the Constitution allows, the Obama administration is sowing racial divide to score cheap political points.”
Scott Bomboy is the editor-in-chief of the National Constitution Center.
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