America’s crisis of voting rights

Has the United States Supreme Court killed the Voting Rights Act? No — but with Shelby County, Alabama v. Holder, handed down on June 27, the court has radically reframed the Act’s constitutional meaning. Nearly a half century into the life of the Act, the court has resurrected a long-forgotten premise, one that initially informed the Act’s enactment in 1965 — that the Act is in principle temporary legislation because ordinarily the States, and not the federal government, regulate voting.

Back to centre stage

Consequently, voting rights have returned to centre stage in American politics. Some States are generating measures that make voting harder — for instance, requiring identification to vote. But other (if fewer) States are making it easier — by providing, for instance, for same day registration. On the whole, the reality on the ground is unsettling. Several States — Alabama, Mississippi, and Texas — which had been barred by the Act from proceeding with restrictive voter identification measures now plan to implement them.

One way forward is for Congress to accept the new decentralisation that the court has engineered, and let the States experiment. Alternatively, Congress could redesign a durable, national system for protection of voting rights. But that would be very hard work, especially given the Republican Party’s commitment to tough voter eligibility standards, and thus to voter identification legislation. Also, any presidential pressure on Congress would be very polarising. Barack Obama is the first President since Lyndon Baines Johnson to truly support voting rights, unlike the Republican Presidents who previously presided over extensions of the Voting Rights Act. Yet in the current context of partisan rancour, he must keep quiet and let Congress lead. Maddeningly, though, a bipartisan coalition that would answer the court appears unlikely.

The seeds for the current crisis were sowed in 1965, when Congress framed the Voting Rights Act as emergency legislation. The end of the mid-1960s crisis in American democracy — so vividly dramatised by official violence against African-American protesters in March 1965, in Selma, Alabama — was not obvious. But the initial congressional guess was 1970 — which proved to be the year that the Act was first renewed.

That renewal, in 1970, was a harbinger of the Act’s gradual institutionalisation. As time went on, both political parties deemed the Act a success that deserved semi-permanent status. To be sure, everyone knew that some day African-American voting rights would no longer require federal protection. Yet it was taken for granted that the when and the how of such a decision were up to Congress. And certainly no one anticipated, either then or during the Act’s several renewals in 1970, 1975, 1982, and 2006, that the Supreme Court would step in for Congress.

The 14th and 15th Amendments to the Constitution give Congress the power to enforce them. The court can certainly construe the statutes that Congress writes. It has, in fact, been a close partner in such construction since 1966, when the court first reviewed the Voting Rights Act. Until June 27, Congress and the court worked together cooperatively in a process of updating and implementing the many powerful provisions of the Act. The court’s conservative members thus shattered a long-standing alliance between Court and Congress when they suspended most of the Voting Rights Act’s operation.

To be sure, in 2009, in a case from Texas, the Chief Justice warned that this might happen. But Shelby is a genuine shock to the system. The last time the Supreme Court invalidated a voting or civil rights statute was 130 years ago, in the still controversial Civil Rights Cases of 1883, which struck at the 1875 Civil Rights Act.

The substantive basis for the rupture is equally startling. The court held in Shelby that the 2006 renewal of the Voting Rights Act offended the constitutional requirement that the States in the Union must be treated equally by the federal government once any unequal treatment of these States becomes outdated. The States and jurisdictions targeted by the Act’s coverage formula, in Section 4 of the Act, no longer experience deep racial conflict, the court claimed. By inference, there is also no trouble in the States of Alaska, Arizona, California, and Texas and in counties or boroughs in Florida, New York City, North Carolina, or South Dakota, all of which historically experienced Latino vs. Anglo or Native-American vs. white conflict in electoral politics.

In fact, when Congress renewed the Act in 2006 it irresponsibly pretended — or so the 5-4 majority suggested in what amounts to a rebuke of how Congress works — that the South and the other covered jurisdictions were frozen in time. The court pictured Congress as blind to the obvious: discrimination in voting is a thing of the past.

Embracing the democratic progress since the 1960s, the court thus held that the 2006 coverage formula is unconstitutional (although interestingly nowhere can the Shelby majority find constitutional text to support this claim.) The result is that administrative scrutiny by the Department of Justice of changes in State and local election law and districting (per Section 5 of the Act) are now on hold. There is nothing to administratively review, since the jurisdictionally targeted coverage of Section 4 is dead.

Imprudent experiment

Of course there is more to worry about here than disdainful judicial reprimands of America’s national assembly. America’s tortured development as a political democracy frames the court’s weakening of the Voting Rights Act as overly optimistic. As the Southern writer William Faulkner once wrote, “The past is never dead. It is not even past.” The Shelby decision imprudently experiments with America’s deepest social and political cleavage.

We had a Reconstruction, the First Reconstruction after the Civil War, and for a time it was a considerable success. We had African-American members of Congress, Louisiana briefly had a black governor, and the South Carolina Supreme Court had an associate justice who was African-American. The University of South Carolina Law School was briefly fully integrated. Also, the public schools in New Orleans were integrated. The turnout rate among African-American adult male voters was about 80 per cent in presidential elections. There was plenty of conflict and terrible violence, to be sure. The First Reconstruction was nonetheless one of the world’s greatest experiments in democracy.

But the First Reconstruction was killed off, and black voting and office-holding were reduced literally to zero by about 1900. It took until the 1960s to rebuild the strength of black politics and to force the country to enact the Voting Rights Act. American democracy has required a Second Reconstruction, to use the coinage of the great American historian, C. Vann Woodward.

Nothing like the stunning reversal of democracy that happened by 1900 is on the cards today. The Democratic Party is strongly committed to minority voting rights, and all Republicans pay lip service to the ideal — and some are very strongly committed to protecting them, such as the main author of the 2006 renewal, Rep. James Sensenbrenner of Wisconsin. Also, the Supreme Court rather surgically invalidated the coverage formula of the Voting Rights Act, but left the rest intact — thus encouraging use of the federal courts. To be sure, litigation was the time-consuming, uncertain remedy that existed before 1965. But the difference between then and now is that there are many more election lawyers, and in general the lower federal courts are more liberal on voting rights than the Supreme Court. Also, there is a great deal of talent and capacity in the Civil Rights Division of the Justice Department, which has been active in one form or another since the late 1930s.

America is much different from 1965 — or even 2006. The court was right about that. Not only did an African-American with a Kenyan name win the presidency in 2008, but that same controversial President also decisively won re-election last November. Still, the historical shadows over this decision are long and deep. We’ve seen in America how democratic revolutions can go backward. If the voting rights revolution of the past generation weakens seriously, then it will not be the first turn in such a cycle. Ironically, the first country in the world to have mass suffrage is still caught in contestation over protection of the right to vote. In that sense, Faulkner put his finger on a deep truth of American politics.

(Rick Valelly teaches American politics at Swarthmore College, outside Philadelphia, and is author of The Two Reconstructions: The Struggle for Black Enfranchisement (University of Chicago Press, 2004), and most recently of American Politics: A Very Short Introduction (Oxford University Press, 2013)).

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