Over the years, we've all received those cryptic messages that the Voting Rights Act of 1965, one of the most important pieces of legislation from the Civil Rights era, was in "danger." Welp. Yesterday, the VRA in fact got assaulted by the United States Supreme Court—"stabbed in the heart"— as Rep. John Lewis put it, and has to rely on a clearly dysfunctional Congress to save its life.
Yesterday, in ruling on Shelby County vs. Holder, the conservative majority of the Supreme Court, in a stunning 5-4 decision, said that though it is clear that voting discrimination still exists, the formula used to determine how it exists and the effective means to remedy that discrimination is unconstitutional (though Chief Justice John Roberts did not specify which part of the Constitution was violated). In effect, because the Voting Rights Act has worked so well, it is now being dismantled. In a scathing minority dissent, Justice Ruth Bader Ginsburg was clear: if it ain't broke, don't fix it. "Throwing out [the current VRA] when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you're not getting wet."
Chief Justice Roberts opined in Shelby that the country has "dramatically changed" since those bloody days of Freedom Riders, "in large part because of the VRA." Yet yesterday's decision voided an essential part of the VRA, which essentially gave the Justice Department a proactive means of stopping voter discrimination by states and jurisdictions who historically have shown their behind.
President Barack Obama quickly condemned the ruling, as did the current head of the Justice Department, U.S. Attorney General Eric Holder: "This decision…has the potential to negatively affect millions of Americans across the country. These problems have not been consigned to history. They continue to exist and their effects are real; they are of today, not yesterday."
Here are 5 key things you should know about the VRA:
1) The Voting Rights Act Has Gone Through A Few Incarnations
Signed into law on August 6, 1965 by President Lyndon Johnson, The Voting Rights Act was a means to enforce the 15th Amendment to the Constitution, which gave African Americans the right to vote, though we know that insidious Jim Crow laws, literacy tests and outright intimidation and death, essentially disenfranchised African Americans for many years after the amendment was ratified in 1870. The VRA has been reauthorized five times, most recently in 2006 for 25 years (set to expire in 2031) and in 2006, Congress conducted over 20 hearings, heard from over 50 expert witnesses, and collected over 17,000 pages of testimony. The Supreme Court essentially voided that work but in the same breath asked Congress to figure it out again. Yesterday Justice Ginsburg noted, “Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today."
2)The Decision Revolves Around Section 4 (and 5) of the VRA
Shelby County vs. Holder abolished Section 4 of the Voting Rights Act. Section 4 was a formula created by Congress used to determine which states and jurisdictions had historically discriminated against voters or potential voters. Not surprisingly, many of those states and municipalities were in the confederate South (though Brooklyn and certain counties in California were included as well), and these areas were subject to extra scrutiny when they tried to change local election laws. Section 4 was the precursor to Section 5, which gave the Federal government the right to "pre clear" any changes to election laws in those jurisdictions identified by Section 4. And so, if a local election board in Mississippi, for instance, wanted to enact a new rule saying that all of the polls in the "certain" part of town should be closed except for three, that would have been run by the Justice Department, which would have most likely voided the rule, since it was discriminatory. Now all bets are off. Which leads to…
3)The "Games" Have Begun
Literally moments after the decision was made, several states including Texas, Mississippi, Alabama and North Carolina — coincidentally states in which up until yesterday were those scrutinized under Section 4 — literally rolled back the clock. Republican State Attorney generals immediately put into effect Voter ID laws, many of which previously had been deemed discriminatory by the Justice Department, back into place yesterday in light of the recent decision. To give some context here, a 2012 Voter ID law signed by Governor Rick Perry was struck down because it was determined that Hispanic voters were twice as likely to lack specific Voter ID than non-Hispanic voters. It has been determined that 800,000 registered Hispanic voters without government issued ID will be affected by this law (plenty to change an election) which is now back on the books. For now.
4) The Voting Rights Act is Not Officially Dead. Who Can Save the Day? Congress!
The good news is that Congress can essentially revive the Voting Rights Act in its current incarnation. The bad news is that it's up to this Congress to revive the Voting Rights act in its current incarnation. Though under President George W. Bush, the VRA went through (unanimously in the Senate), one wonders if this is even possible with this highly politicized, bi-partisan and clearly dysfunctional Congress, who can't seem to agree on the most basic things. The Supreme Court determined that Congress must use updated criteria to determine which states are subject to oversight (Section 4 again). And even if this Congress could agree on new criteria, one can only surmise will be acceptable to the Supreme Court. As it now stands, if Congress can't get it done, those who allege discrimination will have to rely on the courts, a costly and burdensome prospect which may take years (and many “lost” elections) to rectify.
5) The Republican Party Has To Tread Lightly Here
One can guarantee that since the decision, Republicans have been mulling over their options (and strategies), which is why none of them had anything but the most generic to say about it after the decision came down yesterday. They have the majority in the House and so they have the power. As Republicans negotiate how to deal with immigration in the face of a rising Hispanic majority, while simultaneously disenfranchising them, Republicans now have to figure out how to either save or destroy the current the Voting Rights Act without looking like bigots. One wonders if they will use this as some sort of leverage to destroy Obamacare or the tax code, but whatever happens, history will surely look back on them and ask if they did the right thing, or turned back the hands of time. We won't be holding our breaths.
One last note – this is why voting is essential (and why this whole thing is a vicious cycle). It should be noted that the five Supreme Court justices who voted to dismantle the VRA were appointed by Republican Presidents. The four dissenters were appointed by Democrats. The majority in Congress are Republicans, and it is essentially on them to revive or destroy this act (which honestly, doesn’t look like it’s in their interest since most disenfranchised people do not vote Republican). There is a Congressional election in 2014—time to take it back.