This will be a fairly long post, and will address the recent Supreme Court hearings of Shelby County v. Holder, a legal challenge to Section 5 of the Voting Rights Act. It will also discuss racial privilege and the usage of the term ‘racism’- as well as judicial activism.
The Fifteenth Amendment to the Constitution was ratified in 1870. It was the last of the “Reconstruction Amendments” that fundamentally changed how race was viewed in the eyes of the law. The Thirteenth Amendment, recently given spotlight as the focus of Spielberg’s blockbuster film Lincoln, abolished slavery. The Fourteenth is complex but contained the Due Process Clause, which led to protections of individual rights by applying the Bill of Rights to states in addition to the federal government.
The Fifteenth is about voting, as racial equality must also mean political equality. It reads:
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
While this amendment was not truly realized until the civil right movement and federal intervention in the 1960s, it is key to understanding the debate about the Voting Rights Act (VRA) that exists, and the potentially drastic changes that could result from a Supreme Court ruling in Shelby County v. Holder.
The Voting Rights Act was one of several federal laws aimed at desegregation and racial equality. Since its passage in 1965, has been reauthorized on several occasions, most recently in 2006. Much of the Act is not cause for controversy- Section 2 simply echoes the text of the Fifteenth; however Section 5 has continually caused friction and legal challenge.
Passing a discriminatory voting law, at any level in the United States, is illegal and the VRA gives the Attorney General wide authority to challenge such laws if there is good evidence that it has a discriminatory effect. Section 5 requires certain states and local jurisdictions to pre-clear any new election statutes, provided they have a recorded history of voter discrimination. This includes several states of the formerly segregated South, Alaska, and specific counties in other states. A place does not need to have a Jim Crow past to be listed– Monterey County, California, near where I live, is listed and has been for decades. And this section is not purely historical- hundreds of cases have been brought to federal court under the VRA in the past two decades. A major case against Texas was brought before the Supreme Court prior to Shelby County. The 2012 election saw Voter ID laws being passed, often very close to the election date. Preventing last-minute tricks is a key reason Section 5 exists and has been kept beyond its initial lifespan.
Now to segue to the talk of race itself. Chief Justice Roberts mentioned to US Solicitor General Donal Verilli Jr. that minority registration and turnout was often worse in states like Massachusetts than regulated states like Mississippi. He also asked if racism in the South was really worse at this point than racism in the North.
These two points have the same dangerous confusion- they use the term “racism” to conflate two related but separate concepts- prejudice and discrimination. They are not, and never will be, the same. When talking about the North versus the South in terms of racism, one is discussing prejudice. There are large numbers of people in states like Massachusetts, or Oregon, or Hawai’i that believe in racial superiority and inequality, and that is a problem that needs to be addressed. However, the point of the VRA is that certain groups in certain areas put their prejudices into policy- that is discrimination and it is the relevant behavior when discussing Section 5. As George Washington University law professor Spencer Overton points out, “covered jurisdictions account for less than twenty-five percent of the nation’s population, but they account for fifty-six percent of successful Section 2 litigation.” There is ample evidence that the covered states have continuing issues with Fifteenth Amendment compliance.
When Associate Justice Scalia spoke, he said that the 2006 renewal of the VRA was due “to a phenomenon that is called perpetuation of racial entitlement…Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.” It seems strange that voting could be tied to racial entitlement, something Elizabeth Wydra (who wrote an amicus brief in favor of the government’s position) agrees with. Even if it was true, and Congress has been less than exacting in their renewals, to overrule their votes is a clear case of judicial activism. Firstly, there exists copious evidence that the 2006 renewal was carefully reviewed- Overton retorts
In considering whether to reauthorize, Congress held twenty-one hearings, heard from over ninety witnesses, and assembled a fifteen-thousand-page record. Congress did not simply rely on the existing coverage formula, but instead was guided by the extensive evidentiary record that showed contemporary discrimination in voting remains concentrated in covered jurisdictions.
And the Fifteenth Amendment could not be clearer- the first section outlines a goal, and the second gives Congress the sole power to figure out effective methods to realize it. And despite misgivings about Congress, their eventual overwhelming approval in 2006 (similar in support to the original 1965 bill) shows bipartisan consensus has endured. For the judicial branch to interfere with that would be bold, and without much evidence that Congress has been negligent or themselves discriminatory.
The VRA is not a fossil of the Civil Rights era- it is a mechanism to keep the goals of the social movements alive, as we do not live in a race-neutral country and each year is a fight to progress closer to the mountaintop.
Martin Luther King Jr.’s iconic “I Have a Dream” speech is known primarily for its stirring ending. But the buildup to that phrase has some of the clearest explanation of what the country needed to rise above in the 60s. He asserts that “We can never be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.” (text)
Indeed, as long as people cannot vote, there is no satisfaction. And if a black citizen’s vote is diluted by racially-motivated gerrymandering- in New York or Mississippi- the job is still undone.