Dewey M. Clayton, Ph.D.
This year, August 28, 2013, marks the 50th anniversary of Martin Luther King’s March on Washington. Part of the rationale for the march was to implore Congress to pass meaningful civil rights legislation. Within a year or two, Congress passed two major pieces of legislation: the Civil Rights Act of 1964, which outlawed segregation and discrimination in all areas open to public accommodations throughout the nation, and the Voting Rights Act of 1965, which outlawed literacy tests as criteria for voting and gave African Americans the right to vote throughout the country. It is a cruel irony that two months before this nation commemorates this historic march, the U.S. Supreme Court struck down a key provision, Section 4, of the Voting Rights Act in Shelby County v. Holder (2013).
Congress enacted the Voting Rights Act in 1965 to end racial discrimination in voting. In a 5-4 decision, Chief Justice John Roberts acknowledged that the Voting Rights Act “employed extraordinary measures to address extraordinary problems.” These extraordinary problems were largely the racial discrimination that Congress determined existed in certain areas of the country in 1965. To that end, Section 4 of the Voting Rights Act established the formula for deciding what areas of the country should be covered jurisdictions. Section 5 established that all covered jurisdictions (nine states — mostly in the South, and 12 cities and 57 counties elsewhere) must obtain preclearance (prior approval) from either the U.S. Justice Department or the U.S. District Court for the District of Columbia before they can make any voting law changes. The formula was derived from 1964 presidential election data. The original preclearance restriction was for five years. Congress reauthorized the provision for another five years in 1970, another seven years in 1975, and another 25 years in 1982. It was the hope of most Americans that by 2007, racial discrimination in voting would be so negligible that the preclearance requirement of the Voting Rights Act would no longer need to be renewed. However, Congress, after examining a substantial amount of recent voting rights data in the covered jurisdictions, determined that the preclearance requirement was still needed. As such, in 2006 both Houses of Congress overwhelmingly renewed the Act – by a vote of 390-33 in the House of Representatives and 98-0 in the Senate, without updating the Section 4 coverage formula. President George W. Bush signed the bill into law on July 27, 2006.
As part of its decision in Shelby County v. Holder (2013), the Supreme Court published a chart comparing white and black voter registration levels in 1964 and in 2004 in the states originally covered by the VRA. For example, in Alabama, in 1965 the white registration rate was 69 percent and the black rate 19 percent. However, by 2004, the white registration level was 74 percent and the black rate had increased exponentially to 73 percent, essentially equal. Roberts acknowledged this is substantial improvement in large measure because of the Voting Rights Act. But numbers can sometimes be misleading. There is increasing statistical data that blacks are being excluded from representation and power in Southern states. According to David Bositis, a senior research associate for the Joint Center for Political and Economic Studies, “Black voters and elected officials have less influence now than at any time since the Civil Rights Movement. Less than a handful of the 320 Black state legislators in the South serve in the majority in their legislative chambers.” Racial gerrymandering is one way that blacks have lost political power. Once the Voting Rights Act was passed by Congress, many public officials, particularly in Southern states, changed their tactics from those that denied minorities access to the ballot to those that dilute the minority vote. Dilution can be achieved in a variety of redistricting schemes: stacking occurs when heavily concentrated minority populations, large enough for separate representation are combined with majority population concentrations; cracking occurs when a minority population, large enough to constitute a majority-minority district, is divided among several majority districts, thus, diluting the minority voting strength; and packing takes place when district lines are drawn so as to create districts that are 70, 80, or 90 percent minority, thus wasting minority votes that could have strongly influenced a separate majority district.
Roberts stated in the majority opinion that the “really bad things going on in the Jim Crow South justified the Section 4/5 constitutional deviation.” However, Roberts asserts there doesn’t appear to be any evidence presently that racial minorities, or at least blacks, are systematically disadvantaged versus whites in terms of the right to vote in Section 5 jurisdictions. In Robert’s view, Sections 4 and 5 were always temporary measures (because they were initially set to expire after five years) to support Section 2. According to Roberts, “Section 2 is permanent, applies nationwide, and is not at issue in this case.” As noted earlier, Section 5 of the VRA requires states to obtain federal approval before making any election law changes. This, in Robert’s view is a departure from the general principles of federalism. He argues, “the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections. But to support this assertion, he argues that the states are sovereign – sort of. Roberts wants it both ways.
For example, in his opinion, he acknowledges, “Outside the strictures of the Supremacy Clause, States retain broad autonomy in structuring their governments and pursuing legislative objectives. Indeed, the Constitution provides that all powers not specifically granted to the Federal Government are reserved to the States or citizens.” Roberts also acknowledges that Article 6 of the Constitution outlines the supremacy of national law, but then he proceeds to declare the states are sovereign. It has to be one or the other. He notes, “Not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States. This is where I take issue with Roberts. States do not retain sovereignty under the Constitution. States are quite independent and autonomous as stated in the 10th Amendment, but they are not sovereign or equally sovereign, (but they are equal). The fact that Article 4, Section 4, of the Constitution outlines the national government’s duties to the states shows that the states are not sovereign and the framers did not intend for them to be. Furthermore, the fact that states are not sovereign is essential to the operation of federalism.
For Roberts to contend that the VRA restrictions of Sections 4/5 infringe on state sovereignty is wrong and misleading. For starters, when did the states become sovereign? The U.S. Constitution does not mention the concept of sovereign states. Our nation had sovereign states under the Articles of Confederation and Perpetual Union which was created in 1777. That system failed to work and was replaced in 1789 by a federal form of government which divided power between a national government and state governments. States are largely independent, having control over many policy areas, but they are not sovereign. National supremacy is a constitutional principle of American government. It is rooted in Article VI of the United States Constitution, which states that the Constitution, national laws, and all treaties are the supreme law of the land. Thus, any exercise of national power supersedes any conflicting state action. For example, if states were sovereign, President Dwight D. Eisenhower would not have been able to send troops into Little Rock, Arkansas, and end the governor’s reluctance to allow nine black boys and girls to enter Central High School in 1957 (in defiance of the Brown decision in 1954).
Second, by the Supreme Court striking down part of the Voting Rights Act, they are infringing on the constitutional authority of the legislative branch. Thus, this is really a separation of powers issue between two branches of the national government: the legislature and the judiciary. By voiding the Section 4 formula of the VRA, the preclearance requirement of Section 5 becomes a moot issue. Chief Justice Roberts told Congress to come up with a new formula for Section 4, because the states that are currently covered under the present formula are being unfairly targeted. So, in essence the Supreme Court is ignoring the intent of Congress. Furthermore, the Fifteenth Amendment to the U.S. Constitution states that the right to vote shall not be abridged on account of race, color, or previous condition of servitude and Congress has the authority to enforce this legislation. This is not the first time in a voting rights case that the Supreme Court has ignored the intent of Congress. In City of Mobile v. Bolden (1980) — a case dealing with Section 2 (minority vote dilution) of the VRA, the Supreme Court ruled that it was not enough for minorities to prove that a districting plan had a discriminatory effect, unless there was evidence that it was created with discriminatory intent as well. Congress, angered that its intent had been circumvented, passed a 1982 amendment to Section 2 of the Voting Rights Act saying that any districting practice that had the effect of discriminating against minorities – regardless of intent – was unconstitutional. So, the question now becomes, will Congress put aside its partisan bickering, and once again see this as the Supreme Court thwarting the intent of Congress, and create a new map of covered states?
Furthermore, Section 2 is not the heart of the Voting Rights Act, (as Roberts asserts) but Section 5 is. This is because under Section 5, the burden of proof was on the “covered” jurisdictions (governments) to prove to the Department of Justice or the U.S. District Court for the District of Columbia, that their new election law changes did not have a discriminatory effect on minorities. Conservatives argue that Section 2 of the VRA, which applies to all states, is still in place to challenge a discriminatory voting law. By essentially doing away with Section 4, which takes the teeth out of Section 5, the Supreme Court ruling now shifts the dynamics considerably: under a Section 5 challenge, the burden of proof was on covered jurisdictions to show that any new election law changes did not discriminate against minorities. Under a Section 2 challenge, the burden of proof is on individuals who feel they have been discriminated against by the jurisdiction. As such, they will have to file a lawsuit against the alleged discriminating jurisdiction (usually after the election has taken place). This process will be much more burdensome on those who feel they have been discriminated against. They will have to hire legal counsel, bring a lawsuit after the alleged law has already gone into effect, and be required to show a court that the new election law discriminates against them. This will be very time-consuming, expensive, and a more difficult standard to prove.
Justice Ruth Bader Ginsburg wrote the dissenting opinion in the Shelby County v. Holder (2013) case and was joined by three other liberal justices on the Court. While reading her dissent from the bench, she stated the focus of the Voting Rights Act had properly changed from “first-generation barriers to ballot access” to “second generation barriers” like racial gerrymandering and laws requiring at-large voting in places with a sizable black minority. The old Jim Crow laws such as literacy tests and poll taxes may be dead, but they have been replaced by the new Jim Crow laws such as racial gerrymandering and restrictive voter ID laws. Five of the nine states which were originally under preclearance are moving ahead with voter ID laws, with the addition of Arkansas since the Supreme Court ruling. Some of these voter ID laws had already been rejected as discriminatory under the Voting Rights Act. Let us hope that Congress is up to the task of creating a new Section 4 formula for the covered jurisdictions, so that Section 5 can once again be an important tool in eliminating discrimination in voting procedures in America.
Dewey M. Clayton, Ph.D., is a Professor of Political Science at the University of Louisville. He is the author of two books, African Americans and the Politics of Congressional Redistricting (2000), and The Presidential Campaign of Barack Obama: A Critical Analysis of a Racially Transcendent Strategy (2010).
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