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The devastating demise of crucial provisions in the Voting Rights Act of 1965

Part 1 of 2

 

During the post-Civil War era, the 15th Amendment became one of the most essential features of our governing document by ordaining that the right to vote “shall not be denied or abridged...on account of race, color, or previous condition of servitude.”  Crucial to the amendment’s future effectiveness was its less renowned Section 2, which granted to Congress the “power to enforce [it] by appropriate legislation.”  

But Congress, as Justice Ruth Bader Ginsburg wrote in 2013 while dissenting in Shelby County (Alabama) v. Holder, “learned from experience that laws targeting particular electoral practices or enabling case-by-case litigation were inadequate to the task.” Voting suits are onerous to prepare and litigation has been exceedingly slow. Even when favorable decisions finally are obtained, some states work around them by devising discriminatory devices not prohibited by the federal judgments or have formulated difficult new tests that  prolong the existing disparity between white and African-American registration. Or, local officials have defied and evaded court orders, or simply closed their registration offices to freeze the voting rolls. In sum, as Chief Justice John Roberts agreed in Shelby County v. Holder, “[t]he first century of congressional enforcement of the Amendment can only be regarded as a failure.” 

It took the brilliant, complex and maddening Lyndon B. Johnson to sign into law a solution, the Voting Rights Act of 1965 (VRA), which Ginsburg called in her Shelby County v. Holder dissent “one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history.” In two crucial provisions of the VRA, Section 5 required “preclearance” by federal authorities before any state or subdivision deemed a “covered jurisdiction” — i.e., a jurisdiction with a history of racial discrimination when it came to voting rights — could change its voting practices or procedures. Section 4(b) set forth the “coverage formula” to determine which states and subdivisions maintained tests or devices as prerequisites to voting and had low voter registration or turnout in the 1960s and early 1970s. Together, these provisions finally put a stop to the evasions of jurisdictions with bad records on granting people of color an equal chance to vote.

These special provisions originally were granted a life span of just five years, though Congress reauthorized them for another five years in 1970, seven years in 1975, 25 years in 1982 and 25 more years in 2006. Along the way, the list of jurisdictions covered was expanded and an additional category of discrimination was added.   

But in 2013, in writing for the majority in a 5-4 decision in Shelby County v. Holder (Kennedy voted with the usual conservatives), Chief Justice Roberts eviscerated the VRA by holding that Section 4(b), which contained the “coverage formula,” was unconstitutional: “In 1965, the States could be divided into two groups: those with a recent history of voting tests and low registration and turnout, and those without those characteristics.  Today, the Nation is no longer divided along those lines, yet the [VRA] continues to treat it as if it were.” 

Justice Ginsberg wrote a passionate dissent including biting language (e.g. “Hubris is a fit word for today’s demolition of the VRA.”). But, despite my pain in seeing preclearance vanish, as least for now, I believe the Roberts majority had the better argument, identifying the chink in the armor for the constitutionality of those vital sections.

Prior to the 2006 reauthorization, as Ginsburg pointed out, the House and Senate “held 21 hearings, heard from scores of witnesses, and received a number of investigative reports and other written documentation of continuing discrimination in covered jurisdictions.” When compiled, the legislative record amounted to over 15,000 pages. What’s puzzling, however, is that with all that labor, why did Congress not bother to recast the “coverage formula” when so much had changed?  Instead, the 2006 VRA repeated word-for-word Section 4(b)’s 1965 “coverage formula,” supplemented by identical “coverage formulae” that took effect in 1968 and 1972, having already been added by prior renewals.  

The preclearance mechanism, for now, lies dead in the water. Voting rights experts might continue to debate whether the Roberts majority or Congress is to blame (I point to Congress), the latter for not amending the criteria in the VRA’s “coverage formula” to comport with Roberts’ words: “[C]ongress did not use the record it compiled (from its lengthy sets of hearings) to shape a ‘coverage formula’ grounded in current conditions. It instead reenacted a formula based on 40-year-old facts having no logical relationship to the present day.” We are now consigned to wondering why Congress has not fixed the problem, since in Shelby County v. Holder even the Chief Justice admitted that: “[V]oting discrimination still exists; no one doubts that.”

 

Next week, Church will examine why Congress has failed to amend the VRA to revitalize the critically important “preclearance” device. Beyond that, he will provide examples of post-Shelby County v. Holder discrimination based on race, and discuss briefly what might be done about them. 

 

Charles Church is a human rights lawyer who resides in Salisbury.