The Federal Government and the Voting Rights Act

A PRESENTATION OF THE MISSOURI BAR’S CITIZENSHIP EDUCATION PROGRAM

In this presentation, we will look at the circumstances that gave rise to one of the most significant expansions of federal power: The Voting Rights Act of 1965.

The issue of voting rights has always been controversial

Let’s look at the historical context of how our system has been used to devalue the worth of certain voters.

The Framers of the Constitution created a document that regarded people with black skin as three-fifths of a person.

History.com

The Framers also allowed for the importation of slaves for twenty additional years and required the return of runaway slaves to their owners.�

When a freed slave named Dred Scott sought recognition by the courts as a citizen, the Supreme Court rejected his claim in Dred Scott v. Sandford (1857).

History.com

Chief Justice Taney of the Supreme Court not only rejected the claim, but wrote of blacks:�

“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.

With the Court’s decision in Dred Scott, blacks were seen as less than human.��Within a dozen years, though, they would not only become citizens, they would be given the guarantee of a right to vote in the Constitution.��

“The right to vote shall not be denied on account of race”�Are there any problems with this wording?

This was an extraordinary change.

And, this was an extraordinary promise for people who had recently been seen as undeserving of the rights that white people had.

Like many promises, this one went unfulfilled.

States were in charge of elections. In many states, schemes were hatched to prevent blacks from voting.

The Ku Klux Klan threatened, assaulted and killed freed men who sought to take advantage of the rights given to them by the 15^th Amendment.

Public officials turned a blind eye, or even collaborated, in this campaign of terror against American citizens.

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Slate

States developed tests and imposed taxes to keep minorities from voting.�

“Literacy Tests” given to freedmen and their descendants posed questions that would have baffled PhD’s.�����

When they failed, blacks were denied the vote, not because of the color of their skin, but because they lacked the education and intelligence to cast an informed vote.

NY Public Library

To illustrate the impact of literacy tests, look at how few African Americans were able to vote: ��In Alabama, Dallas County [Selma] was 57% black with only 1% registered; ��Rural Wilcox County, which was 78% black and Lowndes County, which was 81% black, had not a single black person registered to vote.

Poll taxes also prevented blacks from voting. Again, it didn’t prevent them from voting because they were black, but rather, because they were poor.

History.com

The problem was that things like poll taxes and literacy tests also kept poor, uneducated whites from voting.

The answer for some states was “the grandfather clause.” If your grandfather was registered to vote prior to 1870, then you didn’t have to pay the poll tax or pass the literacy tests.

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These strategies kept the “wrong” type of person away and ensured that only the “right” people would vote.

In 1964, the 24^th Amendment abolished the poll tax in all elections for federal officials.

www.socialistparty.org

The protests in 1965 in Selma, Alabama, led by Martin Luther King and John Lewis, were designed to bring attention to the deprivation of voting rights in the South.�

AP

Police beatings of peaceful protesters on “Bloody Sunday,” March 7, 1965, horrified the entire nation and shifted public opinion strongly in favor of legislation to protect voting rights.

MSNBC

The violence of Selma did not occur in a vacuum.

• It came after peaceful black protesters in Birmingham were beaten and attacked with dogs and water cannons.
• It came after the killing of civil rights workers and leaders and the assassination of a president who advocated for civil rights reform.
• The fear was that the nation was heading toward widespread violence.
• The federal government felt compelled to take action.

On August 6, with Dr. King standing behind him, President Lyndon Johnson signed into law the Voting Rights Act of 1965, citing the “outrage of Selma” and calling the vote “the most powerful instrument for breaking down injustice.”�

The Act came almost 100 years after the Fifteenth Amendment was ratified.

Glen Pearcy

One of the key provisions in Voting Rights Act was Section 2

• Section 2 was applicable nationwide and prohibited any voting standard, practice, or procedure that results in the denial or abridgement of the right of any citizen to vote on account of race, color, or membership in a language minority group.
• The Supreme Court subsequently ruled that the "essence of a Section 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives."

Other key provisions in Voting Rights Act were Sections 4 & 5

• This part of the Voting Rights Act was not applicable to all parts of the country, but instead was focused on states with history of discriminatory practices on registration and voting.
• Before these particular states could change their laws and rules on voting, they had to submit the proposed change to the Justice Department for prior approval (“preclearance”).

Other key provisions in Voting Rights Act were Sections 4 & 5

The states that were required to undergo “preclearance” were identified by this formula:

• Whether on November 1, 1964, the state or a political subdivision of the state maintained a "test or device" restricting the opportunity to register and vote.
• Whether less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964.

This formula meant that nine states would have to get permission to change their voting laws.��This would be the rule for five years.

Department of Justice

What do you think of this concept of “preclearance,”�of requiring certain states to obtain the approval of the federal government in order to make changes in their voting laws?

In 1970, the preclearance requirement in the Voting Rights Act was renewed for another five years.

• This provision from the 1965 Act: Whether less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964.
• Was replaced with this provision: Whether less than 50 percent of persons of voting age were registered to vote on November 1, 1968, or that less than 50 percent of persons of voting age voted in the presidential election of November 1968.

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The Voting Rights Act of 1975

• Expanded protection against voter discrimination to American Indians, Asian Americans, Alaskan Natives and Americans of Spanish Descent
• Extended the practice of preclearance for another seven years.
• Changed the applicable standard to: Whether less than 50 percent of persons of voting age were registered to vote on November 1, 1972, or that less than 50 percent of persons of voting age voted in the presidential election of November 1972.

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The Voting Rights Act of 1982

• Extended the practice of preclearance for another 25 years.
• Did not substantially change the criteria by which states would be required to undergo preclearance.

The Voting Rights Act of 1982

• Instead, it basically said that if states had been required to go through preclearance before, they would continue to have to do so.
• It did give state and local jurisdictions the power to show that they should no longer have to go through preclearance, but the burden of proof was tough.

The Voting Rights Act of 2006

Continued the process of preclearance for another twenty-five years, citing the many examples of state and local government continuing to attempt to prevent minority registration and voting. The coverage formula was not changed.

In Northwest Austin v. Holder (2009), the Supreme Court expressed its concern that the preclearance formula had not been changed by Congress.

Chief Justice Roberts wrote, “The historic accomplishments of the Voting Rights Act are undeniable. When it was first passed, unconstitutional discrimination was rampant and the “registration of voting-age whites ran roughly 50 percentage points or more ahead” of black registration in many covered States.”

However, Roberts emphasized that times had changed:�“Today, the registration gap between white and black voters is in single digits in the covered States; in some of those States, blacks now register and vote at higher rates than whites.”

Time

When Congress failed to make a change in the coverage formula, the Supreme Court would rule that portion of the Voting Rights Act unconstitutional in �Shelby County v. Holder (2013).

Chief Justice Roberts wrote for the Court, repeating ideas previously expressed.

“At the same time, voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, the Act imposes current burdens and must be justified by current needs…”

Chief Justice Roberts wrote for the Court, repeating ideas previously expressed.

“But history did not end in 1965. By the time the Act was reauthorized in 2006, there had been 40 more years of it. In assessing the “current need” for a preclearance system that treats States differently from one another today, that history cannot be ignored…”

Chief Justice Roberts wrote for the Court, repeating ideas previously expressed.

“During that time, largely because of the Voting Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers…”

Chief Justice Roberts wrote for the Court, repeating ideas previously expressed.

“And yet the coverage formula that Congress reauthorized in 2006 ignores these developments, keeping the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs.”

The Court was not unanimous in this case. Justice Ruth Bader Ginsburg led a four-member dissent.

NBC News

Justice Ginsburg argued that the Court should defer to the wisdom of Congress.

• “The stated purpose of the Civil War Amendments was to arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States.
• With overwhelming support in both Houses, Congress concluded that, for two prime reasons, §5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against back­ sliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation…”

“As the record for the 2006 reauthorization makes abun­dantly clear, second-generation barriers to minority voting rights have emerged in the covered jurisdictions as attempted substitutes for the first-generation barriers that originally triggered preclearance in those jurisdictions. ��The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclear­ance is no longer needed.”

For Justice Ginsburg, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Supreme Court

Ultimately, the wisdom of Shelby County comes down to which perspective you endorse:

Chief Justice Roberts’ position that we have made remarkable progress and there is no longer a need for the Voting Rights Act to be used so vigorously.

Justice Ginsburg’s position that the reason we have made remarkable progress is because we have used the Voting Rights Act so vigorously and we should continue to do so.

You are a member of the Court: How would you vote?

USA Today

The Impact of Shelby County v. Holder:�The Limiting of Options to Fight Discriminatory Laws

• While the Voting Rights Act’s prohibition of discriminatory voting laws remained intact, without preclearance, the laws would go into effect and then be challenged after the fact.
• The process would be expensive and lengthy, and during the time the law was being considered by the courts, it would be valid and in effect.

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The Impact of Shelby County v. Holder:�Laws Enacted That Were Rejected Under Preclearance

• Reducing the number of polling places and hours open in minority communities (Example of Atlanta)
• Making it more difficult to vote early or absentee
• Enacting stricter voting identification laws that would impact older minority voters
• Changing voting districts to “at large” so that minority vote would be diminished

The story is not over.

In Shelby County, Chief Justice Roberts challenged Congress to develop a new formula for identifying which states had to use preclearance.

Biography

When the Senate was under the control of Republicans, bills designed to change the formula for preclearance never made it to the floor for a vote.

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And even when Democrats controlled the Senate, they did not have enough votes to break a filibuster.

www.wttw.com

At this point, it seems like change is unlikely.��The Voting Rights Act will continue, but without its full range of tools.��For some, that is cause for celebration.�For others, it is cause for concern.