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WHAT DOES THE SUPREME COURT’S VOTING RIGHTS ACT DECISION MEAN FOR DEMOCRACY?
The Voting Rights Act was signed into law on Aug. 6, 1965, a year after the murder of three voting rights activists in Philadelphia, Mississippi, and just months after the brutal attack on peaceful protesters in Selma, Alabama. At the signing, President Lyndon Johnson called the act “a triumph for freedom as huge as any victory that has ever been won on any battlefield.” The new legislation was meant to enforce the 15th Amendment, which almost a century before, provided that “The right of U.S. citizens to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
The Voting Rights Act has two main provisions — first, a general prohibition on voting discrimination laid out in Section 2, then a requirement, laid out in Section 5, that states with a history of discrimination receive “preclearance” from the Justice Department before making any changes to voting qualifications, practices or procedures.
The Supreme Court’s decision in Shelby County, Alabama v. Holder struck down Section 4(b), which set out the formula for determining which states are subject to the Section 5 preclearance requirement, thus rendering Section 5 — which many consider the heart of the act — meaningless.
America is Not a Post-Racial Society
The Court went outrageously wrong in assuming we have become a post-racial America that no longer needs to be bound by the legal protections that have preserved the electoral process for nearly a half-century. Indeed, discrimination still happens, and it’s not limited just to the southern states covered under provisions of the Voting Rights Act. Discrimination happens across America: North, East, West and South. And, unfortunately, it is not rare.
The Supreme Court’s decision utterly ignores the efforts to suppress voting in 2012. With no real evidence of voter fraud, more than 30 states considered laws to make voting more difficult for African Americans, low-income communities, the elderly and people with disabilities. Fifteen states implemented such measures. The efforts did not rely on poll taxes, dogs or fire hoses, but the intent was the same. Given this trend, the last thing the Court should be doing is sending a message of leniency. Instead, they should make it clear that efforts to suppress the vote will not be tolerated.
Angela Glover Blackwell is founder and CEO of PolicyLink, the national research and action institute advancing economic and social equity. She is co-author of Uncommon Common Ground: Race and America’s Future, and contributed to Ending Poverty in America: How to Restore the American Dream and The Covenant with Black America. Blackwell serves on numerous boards, including The President’s Advisory Council on Faith-based and Neighborhood Partnerships.
Prepare for a Thrashing of the Democratic Process
While great progress has certainly been made since the Voting Rights Act was put into place in 1965, new barriers to exercising the franchise are being erected at a rapid pace. Section 5 of the Voting Rights Act provided assurance that in areas with a history of discrimination, those barriers would receive federal oversight to insure that they would not deter progress for voters of color. With the Supreme Court’s decision in Shelby County vs. Holder, jurisdictions once required to preclear any voting qualification or prerequisite will now be left to themselves to determine what laws they should adopt, a “right” the Court’s decision says is foundational for treating states equally. The Court ignores, however, the importance of insuring that laws are in place to treat citizens equally. In a nation with changing demographics, where a significant percentage of voters of color reside in now-formerly protected jurisdictions, the removal of federal oversight could lead to a sound thrashing of the democratic process.
With protections removed, we will witness a widening gap between voters of color and white voters in voter registration, a decline in the number of minority elected officials and more restrictive laws that impact the elderly, the poor and other historically disadvantaged groups. It has taken a herculean effort of massive education and legal challenges from advocacy groups, nonprofit organizations and the federal government to combat the onslaught of restrictive legislation proposed in the last two years. It will take even more vigilance to protect the progress of the last fifty years and to exceed the promise of current conditions.
Gilda Daniels is a voting rights expert, who has served as a Deputy Chief in the United States Department of Justice, Civil Rights Division, Voting Section in both the Clinton and George W. Bush administrations. Professor Daniels is currently an assistant professor of law teaching critical legal theory, election law, and civil procedure at the University of Baltimore School of Law.
Open Season for Voter ID Laws
There can be no doubt that the Shelby County decision will slow progress toward racial equality and undermine democracy in this country. It will now be open season for states to pass laws ostensibly aimed at preventing voter fraud but actually aimed at suppressing participation by minorities who disagree with the governing majority about key issues of public policy. Even with Section 5 in place, we saw a huge wave of these laws pass last year.
As the lawyer who argued and lost the Indiana voter ID case in the Supreme Court, I know from personal experience how difficult it will be to use more conventional legal remedies like standard civil lawsuits to tackle these insidious laws. The genius of Section 5 was that it provided for expedited review by the Department of Justice before new election laws could go into effect in states with a long history of attempting to suppress minority voting. States were required to show that the law did not impermissibly harm the voting rights of minorities.
This outcome is particularly indefensible since the Fifteenth Amendment specifically authorized Congress (not the courts) to use its own judgment about the best way in which to grant full voting rights to African-Americans in the South. While the country has made great progress on voting rights since 1965, Congress in 2006 compiled an extensive record showing that in covered states there remained a need for the extraordinary remedy of Section 5 in order to prevent backsliding. Under the Fifteenth Amendment, it had the right to make that judgment, which it did virtually unanimously. The Court should have deferred to Congress on this important question.
Paul M. Smith is Chair of the Appellate & Supreme Court Practice at Jenner & Block LLP. His extensive Supreme Court practice has included numerous cases involving voting rights, as well the First Amendment, gay rights and other issues.
Pennsylvania’s Strict Voter ID Law Upheld
A Pennsylvania judge upheld the state’s strict new voter ID laws on Wednesday. The decision was a blow to voting rights advocates who expected aslam dunk victory after the state admitted it was not aware of a single incident of in-person voter fraud and the state’s House majority leader made it clear that the law was politically motivated.
In a 70-page order, Judge Robert E. Simpson, a Republican, said opponents failed to show “that disenfranchisement was immediate or inevitable.” Simpson did not rule on the full merits of the case, only on whether or not to grant a temporary injunction.
Civil rights advocates say the law, which could affect as many as 750,000 registered voters who don’t have the required ID, will disproportionately keep poor, elderly, minority and student voters away from the polls.
Opponents plan to appeal the case to the Pennsylvania Supreme Court, which is currently divided equally with three Democrats and three Republicans (the seventh member, Justice Joan Orie Melvin, a Republican, is currently suspended due to unrelated corruptions charges). A tie would uphold the law.
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- Bill Moyers: Share Your Stories of Voter Suppression...
Rather than throw your hands up in desperation at the powerful political steamroller smashing our democracy, Bill encourages you to re-double your efforts to make a difference, as others have. He offers some real-life, real-people examples, and asks you to share your encounters with politically-motivated rules that make it harder to register or vote, as well as stories of your efforts to overcome them.
Leave your reporting in the comments below or at “The Fight to Vote” our special area spotlighting voter suppression across the country. And please share his request with friends and family.