By: Carolyn Appel
As we commemorate the 4th of July this week, we celebrate not only our independence but our common right of equality before the law. In one of our founding documents, the Declaration of Independence, Thomas Jefferson wrote, “we hold these truths to be self-evident, that all men are created equal.” Throughout our nation’s history, many have worked tirelessly to fulfill the promise of this ideal and extend basic rights of equality to African Americans, women, and other minority populations.
But in a country where ordinary citizens choose their leaders through elections, a person cannot be fully equal unless he or she is first equal at the ballot box. That was the underlying principle of the Voting Rights Act (VRA), which was first passed in 1965.
The VRA was one of the signature achievements of the civil rights movement. It outlawed poll taxes, literacy tests, grandfather clauses, and other methods that were used to systematically disenfranchise voters based on race or color. In 2006, Congress voted overwhelmingly to reauthorize the law for another 25 years. The VRA passed by a 98 to 0 vote in the Senate and a 390 to 33 vote in the House of Representatives – majorities that would be unheard of in the current Congress. However, some House Republicans objected, stating that the law unfairly singled out Southern states for special treatment, sowing the seeds for the Court’s most recent decision.
The original VRA determined that racial discrimination in voting was more prevalent in certain areas of the country. Section 4 set the criteria for determining voter discrimination based on race or color, and provided remedies for those jurisdictions. The coverage formula included whether a state or political subdivision maintained a test or device that restricted the opportunity to vote, and whether less than 50% of persons of voting age were registered to vote as of a particular date. For example, providing ballots only in English to a population of non-English speaking minorities would restrict voting if that population constituted of more than 5% of the citizens of voting age. These criteria were most recently updated in 1975; Congress’ vote in 2006 extended these provisions for another 25 years.
On June 25, 2013 in Shelby County v. Holder, the Supreme Court (in a 5 to 4 decision) struck down Section 4(b) of the VRA. Section 4(b) applied to mostly southern and southwestern states – including Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia – and numerous counties including some in northern states like New York. Though the Court did not rule on the validity of Section 5 as many had predicted, going forward this section may be affected by the decision. Section 5 freezes changes in election practices in the jurisdictions covered by Section 4 until the Department of Justice determines that the proposed change does not impose discriminatory practices.
In Shelby County, the Court essentially said that because the country has changed since 1965, Congress must pass legislation remedying current problems, not those grounded in the past. Chief Justice Roberts noted that African-American voter turnout exceeded white voter turnout in five of the six states originally covered by Section 5 in the 2012 election. This is in opposition to evidence assembled by Congress noting that discriminatory electoral practices and devices tend to be more severe and restrictive in the states and counties previously covered by the VRA.
Writing for the minority, Justice Ruth Bader Ginsberg said that Congress was the correct body to decide whether the law was still needed and which jurisdictions should be covered by Section 4. Further, the law was upheld by large majorities in both houses and signed into law by President Bush who said it was “an example of our continued commitment to a united America where every person is valued and treated with dignity and respect.” Additionally, Julie Fernandes of the Leadership Conference on Civil and Human Rights said that “there was a very robust debate seven years ago,” and “in the end, everyone pulled together – from both parties – and renewed key voter protections.”
While it remains to be seen whether a Congress so divided can once again rouse itself for the cause of eliminating voter discrimination based on race, color, or minority status, the consequences for invalidating Section 4(b) will have immediate repercussions. For example, Texas announced shortly after the decision that a voter identification law that had been blocked would go into effect and that redistricting maps there would no longer need federal approval. If you think redistricting is not that important – think again. In the 2012 election, House Democrats won more votes than House Republicans, but the Republicans kept the majority.
The VRA was enormously powerful in ensuring the vote for African Americans and other minorities. As both citizens and particularly as law students committed to and studying equality under the law, we must press Congress to quickly formulate new criteria for Section 4.