To understand this issue, we need to go back in time because this issue and this case most definitely pertains to the reality of 2012 versus the reality of the early 1960s. Inevitably, like the gay marriage issue, there are charges of “racism” and “bigotry” injected into the argument. Already, groups like the ACLU and NAACP are viewing this case as “potentially setting civil rights back 50 years” if Shelby County, Alabama prevails. They would have you believe that “separate but equal” will return to mass transit, education, travel lodging, eating establishments and water fountains among other things. That is exactly the type of rhetoric that needs to be ignored in this debate. To summarize the entire argument, the case asks whether today’s generation should be punished for the sins of the past.
No one denies there were sins in the past. Although Lyndon Johnson is attributed with the Voting Rights Act of 1965 (VRA), he merely signed the legislation. It was a Republican- Everett Dirksen- who essentially wrote the law and shepherded it through the Senate. It was Republicans who pushed for the law. It was southern Democrats who vehemently opposed the law. And lest we forget, Lyndon Johnson was no saint when it came to civil rights. Somewhere along the line- many point to Nixon’s “southern strategy-” the black community forgot which political party it was that fought for their civil rights and voting rights during the 1960s.
After the Civil War, Congress proposed and the states ratified the 13th, 14th, and 15th Amendments. The latter sought to ensure that blacks, as newly freed slaves and citizens, the right to vote. However, several states enacted laws that basically prohibited or discouraged blacks from voting when outright intimidation and violence were not employed. Such devices as poll taxes and literacy tests were common, although not unique to the south. From about 1875 to the early part of the 20th century, the Supreme Court basically sided with the states and ruled these acts were constitutional Starting around 1904, the Court shifted course and began to strike down some of these laws only to be replaced with other laws that restricted the right to vote. The final straw was passage of the VRA in 1965 which eventually permanently outlawed poll taxes and literacy tests nationwide.
The most unique tool employed, however, is Section 5 and Section 4, which determines who falls under Section 5. Section 5 is the part that requires states or political subdivisions within states to receive clearance from the Federal government before they put into effect any law that affects voting. This ranges from the location of polling places, design of ballots, legislative district boundaries, etc. To be covered under Section 5, a state or political subdivision of a state must have (1) had a device or mechanism designed to suppress minority voting as of January 1, 1964 AND (2) that had less than 50% of its population registered to vote for either the 1960 or 1964 election. These parameters were not pulled out of thin air. Instead, the authors of the law designed them to “capture” those areas most guilty of these practices. As a result, nine states were covered in whole- Alabama, Alaska, Arizona, Georgia (except Sandy Spring), Louisiana, Mississippi, South Carolina, Texas, and most of Virginia (except 14 counties and 4 cities). Also, 4 counties in California, five in Florida, three in New York, 40 in North Carolina and two in South Dakota are covered while two townships in Michigan and 10 in New Hampshire are covered. As one can see, they did a pretty good job of basically covering the former Confederacy.
Subsequent amendments to the original law added native language besides race or ethnic origin which may explain why counties in California and the state of Arizona is covered. With South Dakota, it is Native Americans. The law was renewed in 1970 for six years, in 1975 for another 7 years, in 1982 for 25 years and finally in 2006 for 25 years set to expire in the year 2031. States or subdivisons can “bail out” of Section 5 coverage if they can show a pattern of non-discrimination for a period of ten years. Assuming they satisfy the requirements, they are freed of the preclearance requirements of Section 5. In fact, 18 jurisdictions in Virginia have successfully bailed out and one in Georgia and North Carolina.
Most of the objections to the VRA today is the native language inclusion (which is totally separate from the Shelby County litigation), and Section 5 itself. In order to have any voting change approved, a covered area must submit their plan or change to either a three-judge panel of the DC District Court, or to the Attorney General. They must prove that there is no discriminatory intent, nor, more importantly, discriminatory effects. For example, let’s say a state passes a law that says districts for its state assembly must be of roughly equal population, should not split up counties and be contiguous and that the polling place must be centrally located. Facially, this law would be race-neutral. However, if the state draws the lines and it just so happens that in several of these districts it has the effect of splitting black communities or areas and placing them in largely white areas thus diluting the black vote, the effect would be to suppress the black vote and the Justice Department would likely disapprove of the practice, or ask for more information to make a more informed decision. That is, the state can pass a law that has absolutely no discriminatory intent, yet has a discriminatory effect. Generally, the Justice Department or DC Court has 60 days to rule on the proposal during which time the proposal may not be put into effect. If an election occurs there in the interim, they must abide by the laws currently in place. For these reasons, you will see an incredible amount of litigation under the VRA every ten years when states redistrict as a result of the census.
It should also be noted that the VRA applies to any election from United States Senator down to dog catcher, if the dog catcher is an elected position. In fact, some of the associated litigation out of Alabama involved voting for school board members, and the practice of at-large county official elections. In Alabama, the Justice Department determined that the at-large method, although it made perfect administrative sense, had the effect of suppressing the black vote and keeping black candidates from being elected to county positions.
As concerns the constitutionality in general of the VRA, there is no doubt that Congress had and has the authority to enact such a broad-sweeping law under the Fifteenth Amendment. While Section 1 guarantees the right to vote to blacks, Section 2 states: “The Congress shall have the power to enforce this article by appropriate legislation.” Unlike other Congressional powers, it does not have to be justified under any of their enumerated powers in Article I, Section 8. This authority has been upheld by the Supreme Court on numerous occasions. However, that is not at issue in the current case.
Currently, there are several cases being litigated regarding the VRA. For example, voter photo ID laws are on-hold, being contested by Holder’s Justice Department, on the supposition that such laws will effectively disenfranchise black and/or poor voters. Personally, I never really understood that argument and I have written extensively on voter photo ID laws in effect in other states (Georgia being one of them) having no deleterious effect on black voter registration, turnout, or participation in the political process. In Perry v. Perez just this past term, the Court, after expedited review, ruled that the District Court in San Antonio erred when they threw out the congressional district maps drawn by the state and drew their own. And there is a single case that needs to be discussed before getting into the specifics of Shelby County in part 2. This case, an 8-1 decision written by Chief Justice John Roberts, has given life to facial constitutional challenges to the VRA as it is enforced today. Specifically, in veiled yet obvious terms, Roberts invited this case. The legal strategy by Holder here is important since a case similar to that of Shelby County, but with different practical effects, out of North Carolina was dropped by Holder and he has placed all his eggs in one basket assuming a victory in Shelby County will be the knock-out punch to opponents of the enforcement of Section 5 of the VRA and, by implication, Section 4.
That case was Northwest Austin Municipal Utility District No. 1 vs. Holder, decided in 2009. In this decision, Roberts dodged the constitutional questions and decided the case on statutory grounds. Shelby County is NOT a statutory case and the constitutional question is front and center. Based upon some concerns expressed in the majority opinion in Northwest Austin and questioning during oral argument, the Court presaged the Shelby County argument by, in effect, questioning why criteria established in 1965 should apply to the covered jurisdictions in 2010, or now. If the purpose of the VRA was to eradicate the practices that denied the black vote, then it has done a very good job based on recent statistical analysis. More importantly, Thomas was the lone dissenter because he thought that the Court should reach the constitutional issue. If so, he reasoned, Section 5 “always depended on the proven existence of intentional discrimination so extensive that elimination of it on a case-by-case enforcement would be impossible.” He then cited statistics proving high minority turnout and registration in covered jurisdictions as proof of the lack of extensiveness and then went on to dismiss the so-called “second generation barriers” to voting. Hence, he would have voted to strike down Section 5 as applied through Section 4 on constitutional grounds.
In effect, Shelby County, Alabama is asking the Supreme Court to adopt the express opinion of Clarence Thomas and the intimations of John Roberts. In part 2, the specifics of the Shelby County litigation will be discussed. If one thinks it is complicated at this point, it just gets more complicated from here.