Case

The Voting Rights Act of 1965 was signed into law by President Lyndon B Johnson as a progressive step during the Civil Rights Movement. The Act’s purpose was to stop or limit the long-standing racially discriminatory practices around voting in America. The Voting Rights Act creates a formula to decide to which districts the Act applies. Section 4(b) of the Act decides that the districts in question have had less than 50% voter turnout as of November 1st, 1964. Section 5 requires these districts to obtain authorization before changing their election practices. Authorization, or preclearance, is determined by the United States Attorney General or a three-judge panel from a District Court of the District of Columbia. Preclearance is required to ensure that these district changes are not made with discriminatory intent. The Act was remarkably effective. Though at first it was only enacted for five years, it was strengthened and renewed through 2006. The eligibility requirements in Section 4 have never been updated, in part because of the political division in Congress. 

In 2006, a bipartisan majority reauthorized the Voting Rights Act provisions. President George W. Bush signed the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006. President Bush famously stated, “Today we renew a bill that helped bring a community on the margins into the life of American democracy.” 

Shelby County, Alabama was one of the jurisdictions covered under Section 4 of the Voting Rights Act. In 2010, Shelby County brought suit claiming that Section 5 and Section 4(b) were unconstitutional. The county sued the Attorney General under President Barack Obama, Eric Holder. Shelby County claimed that the Act violated the Fourteenth, Fifteenth, and Tenth Amendments. The Fourteenth and Fifteenth Amendments make up two of the three Reconstruction Amendments. The Fourteenth Amendment protects every person’s right to due process. The Fifteenth Amendment provides enfranchisement regardless of “race, color, or previous condition of servitude.” The Tenth Amendment reserves the rights not given to the federal government to the States. In addition, Article IV of the Constitution provides freedom in governance to each state. The case reached the Supreme Court, which was asked to determine if the aforementioned constitutional provisions were violated by Section 5 and Section 4(b) of the Voting Rights Act. 

Decision

In a 5-4 decision, the Court struck down Section 4 and therefore weakened Section 5 of the Voting Rights Act. Chief Justice John Roberts wrote the majority opinion for the Court. Roberts claimed that the formula in Section 4(b) was outdated. He wrote that “our country has changed,” since the 1964 election and “Congress must ensure that the legislation it passes… speaks to current conditions.” Roberts thought that the passing years had lessened the discriminatory results in voter turnout. Section 4, the majority decided, violated the principle of equal state sovereignty, which is meant to treat all states with an equal hand. Justice Roberts asked Congress to rewrite the Act to reflect current conditions. 

Justice Clarence Thomas wrote a concurrence to the majority opinion. He argued that Section 5 is also unconstitutional along with Section 4. Thomas noted that discrimination wasn’t as prevelant as 1964, making the current burden on states unconstitutional.  

Dissent

Justice Ruth Bader Ginsburg wrote a dissent. Ginsburg noted that there are still many problems with voter suppression and discrimination in the areas decided in 1964. She disregarded the concept of equal state sovereignty. However, the Justice wrote that congressional power is not unlimited and must show a legitimate need, which she thought was satisfied by the Voting Rights Act. The dissent notes that Congress gathered information in order to determine whether or not to renew the Act, so it must still be current. 

Justice Ginsburg argued that Congress has the power to renew the Voting Rights Act because of the 14th and 15th Amendments, not in violation of them. Finally, while the majority did not find Section 5 unconstitutional, Ginsburg found that the decision on Section 4 makes Section 5 impossible to enforce. 

Impact

As soon as the decision was made, states began to roll back voter protections. The state of Texas enacted a voter ID law and a redistricting plan to limit the power of racial minority voters. Many other states made changes as well. The state of Georgia has been accused of voter suppression tactics. Brian Kemp, Georgia’s Secretary of State, who went on to become governor, helped remove 1.5 million voters from Georgia’s voter registry. During the 2018 gubernatorial election, minority voters who were registered to vote were faced with long lines and technical and constructional difficulties at the polling stations. In addition, the state of Florida implemented a poll tax for voters who were once incarcerated. This poll tax targets African-Americans who have higher rates of incarceration, while comparable rates of crime to other races. 

The death of Congressman John Lewis in 2020 prompted a renewal of the debate to rewrite the Voting Rights Act. Lewis, a civil rights icon, was severely beaten in the ‘60s when marching for voting rights. However, Congress, and the Senate in particular, have done very little to rewrite the Act as Justice Roberts suggested in the majority. Senate Majority Leader Mitch McConnell praised John Lewis as a hero in his statement marking Lewis’ passing, but has blocked the Voting Rights Advancement Act, claiming that it was “offensive to average voters.” Many argue that the Voting Rights Act should be passed to honor John Lewis and the cause he fought for.

    Learn More

    1. Collins, Sean. “Rep. John Lewis’s voting rights legacy is in danger.” Vox, (18 July 2020) https://www.vox.com/policy-and-politics/2020/7/18/21329623/rep-john-lewis-voting-rights-legacy-supreme-court
    2. Gillman, Howard. American Constitutionalism, Second Edition. Volume II Rights and Liberties. [Virtual Source Bookshelf].
    3. “Shelby County v. Holder.” Ballotpedia, https://ballotpedia.org/Shelby_County_v._Holder.
    4. “Shelby County v. Holder.” Oyez, www.oyez.org/cases/2012/12-96.

    Think Further

    1. Would a new Voting Rights Act prevent the voter suppression we have seen in recent elections? 
    2. Do you agree that Section 4’s formula should be changed to be more current? 
    3. Why do you think Congress has been unsuccessful in passing a new Voting Rights Act? 

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