Michael Steele: Supreme Court ‘Gut’ the Voting Rights Act

“The Right of Citizens of the United States to vote shall not be denied or abridged by the United States by any State on account of race, color or previous condition of servitude and that the Congress shall have the power to enforce this article by appropriate legislation.”

At the dawning of the 21st Century, the words of the 15th Amendment to our Nation’s Constitution remind us of one of the most precious gifts of liberty: to freely exercise your right to vote.

And yet, even the 15th Amendment—on its face—did not guarantee that the “right of citizens of the United States” to vote would not be denied as America emerged from the fog of civil war and into the new reality that those individuals once enslaved under the constitution were now entitled to exercise their rights as citizens under that same constitution.

It would not be long, however, before certain of the states, particularly in the south, responded to the demand of the 15th Amendment by devising a variety of tools to disenfranchise African American voters for reasons of “eligibility”. From literacy tests to pole taxes, from property ownership to oral and written examinations, States began to enact laws that ultimately “denied and abridged” African Americans their right to vote.

Moreover, when intimidation at the ballot box failed to curb the thirst for full access to the rights guaranteed by the Framers of the Constitution, more insidious and violent means such as lynchings, fire bombs and murder were used to “remind the Negro of his place” in American society.

In our society, all rights are ultimately protected by the ballot box, not the sword.

By virtue of the efforts to “legally” circumvent the dictates of the 15th Amendment as well as the escalation in violence against African Americans in Philadelphia, Mississippi, Selma and Montgomery Alabama the promise of the Constitution for African Americans and many other minorities—full and equal political rights—was like a munificent bequest from a pauper’s estate until the passage of the single most important piece of civil rights legislation in American history: the Voting Rights Act of 1965.

Both Democrats and Republicans were moved to respond to President Johnson’s voting initiative when he declared in his State of the Union Address “we shall overcome”. With the efforts of individuals like Martin Luther King, Andrew Young, and Congressman John Lewis laying the foundation for what would become an increasingly important political movement, Congress took up an historic challenge to end the “blight of racial discrimination in voting…[which had] infected the electoral process in parts of our county for nearly a century” under the leadership of Senate Minority Leader Everett Dirksen (R-Il).

So it is chilling, to say the least, to witness 48 years later the Supreme Court effectively gut the Voting Rights Act.

The Act’s remedial structure is Section 5 which places a federal “pre-clearance” barrier against the adoption of any new voting practice or procedure by covered states and localities whose purpose or effect is to discriminate against minority voters. For over 40 years thereafter, the federal courts, and the Department of Justice worked hand-in-hand to make this promise of Section 5 a very potent reality.

While the Court did not strike down Section 5, it did strike down its operational core—Section 4—which establishes the coverage formula the federal government uses to determine which states and counties are subject to continued federal oversight. Chief Justice John Roberts in writing for the 5-4 majority noted “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.” Under the majority’s reasoning, “If Congress had started from scratch in 2006,” the last time the Voting Rights Act was reauthorized, “it plainly could not have enacted the present coverage formula.”

For the Court to say that such coverage formulas are outdated is reasonable in the face of enormous improvements in minority voter registration and participation. Roberts illustrates his point by providing the following chart comparing voter registration numbers from 1965 to 2004.

As the Chief Justice stressed “There is no doubt that these improvements are in large part because of the Voting Rights Act,” noting “[t]he Act has proved immensely successful at redressing racial discrimination and integrating the voting process.” Roberts would conclude “Those extraordinary and unprecedented features were reauthorized — as if nothing had changed.” Likewise it is reasonable for the Court to want the Congress to update them.

However, to use the success of the Voting Rights Act as a means to gut it is not reasonable. As Justice Ruth Bader Ginsberg aptly noted in her dissent “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 pre-clearance is no longer needed.”

We should not be misled to believe that those States subject to the provisions of the Voting Rights Act have in place the political infrastructure to protect and guard against race-based denial of voting rights, whether intentional or unintentional. Lest the Court forgets: the “right” to vote does not guarantee “access” to the ballot box.

We only need to look at our most recent electoral history, to witness the difficulties still existing in the American electoral process even among those states not subject to the Act. Since 2000, presidential elections, along with countless local and state elections remain subject to allegations of abuse, fraud and civil rights violations, not to mention blatant efforts by state legislatures in Pennsylvania, Florida and Ohio to rewrite existing election laws viewed by many Americans, especially African Americans, to suppress the vote in 2012.

Consequently, it has become even more important in this post-Civil Rights age to maintain the integrity of the election process. Moreover, it is just as important to recognize the value of the Act not just to those States subject to its requirements, but to those who could otherwise be aided by the pre-clearance process. For example, Maryland is not a pre-clearance jurisdiction but is not totally unaffected by Section 5 of the Act. The pre-clearance process at the Department of Justice has assisted in illustrating discriminatory election processes and districting plans and works to set a bar for the redistricting process and electoral process in non-covered states.

African-Americans, Latinos and other ethnic or racial minorities will not participate in an electoral system or process that they do not trust or in which they feel their vote does not count. Nor are they served by an electoral system or process which takes their vote for granted because it has become stagnant, self-serving and monolithic.

Quoting one of our nation’s most famous Voting Rights advocates, Susan B. Anthony: “in the first paragraph of the Declaration [of Independence], is the assertion of the natural right of all to the ballot; for how can ‘the consent of the governed’ be given if the right to vote be denied?”

The Supreme Court appears to have turned that sentiment on its head.

(Cross-posted, with permission of the author, from The Grio)