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The Voting Rights Act

Fifty years ago Congress passed and President Lyndon B. Johnson signed into law the Voting Rights Act. Coming at a seminal moment in the civil rights movement, the Act ensured the right to vote as guaranteed in the Fourteenth and Fifteenth Amendments to the U.S. Constitution. Congress amended the Act reauthorizing and extending its protections in 1970, 1975, 1982, 1992, and 2006. In the 2013 Shelby County decision, the Supreme Court found unconstitutional one of the key enforcement provisions of the Act.

We asked three of our faculty who have expertise on voting and civil rights issues to give us their analysis of what the Act means today.

The Voting Rights Act Turns 50

By Risa Goluboff
John Allan Love Professor of Law
Justice Thurgood Marshall Distinguished Professor of Law
Professor of History

Risa GoluboffAnniversaries can, and should, serve as moments not only of celebration but also of reflection and reconsideration. This 50th anniversary of the passage of the Voting Rights Act of 1965 is no different. The Act stands as a monument to the power of ordinary Americans to create dramatic social, legal, and political change. The Act passed because ordinary people were willing to put their livelihoods, their safety, and their lives on the line in order to publicize not only the injustices they faced but the certainty of their conviction that the United States government could, indeed had to, do something about it. In turn, this anniversary prompts celebration of the will of the federal government to take on the systematic exclusion of millions of Americans from meaningful citizenship and to devote prodigious resources toward its eradication.

But this anniversary of the Voting Rights Act also calls forth more sober reflections. The very enormity of the Act’s interventions is a reminder that the complex of public law and private custom that was Jim Crow systematically attempted to subordinate, exclude, and exploit African Americans—not only in the South but elsewhere as well.

Finally, reflecting on the anniversary of the Voting Rights Act calls forth not a small amount of regret. There is the regret that 50 years of effort has brought substantial, but hardly complete, eradication of racial inequality in American society. And there is the regret that on the eve of this anniversary, the Supreme Court of the United States prematurely deemed that project of transformation complete. The justices who struck down a key portion of the Act misunderstood the nature of Jim Crow, downplayed the monumental undertaking that was the civil rights movement, and underestimated the tenacity of structural racism. Perhaps the most appropriate commemoration of the original passage of the Voting Rights Act, then, would be to see it as impetus for renewed federal commitment to uprooting the different but still powerful racial inequalities that persist today.

From Selma to Shelby County in Three Generations

by Daniel R. Ortiz
Michael J. and Jane R. Horvitz Distinguished Professor of Law
Director, Supreme Court Litigation Clinic

Dan OrtizThe Voting Rights Act has developed in three generations. The first began with its enactment in 1965. That generation focused on immediate and direct burdens on African-American voting, outlawed practices like literacy tests, and required many jurisdictions in the South to get approval from the U.S. District Court in Washington, D.C., or the U.S. Department of Justice before instituting any change in voting procedures. Everyone understood who the practices victims were and most thought these practices discriminatory and unjust. The Supreme Court upheld the law from constitutional attack and it enjoyed bipartisan support. Both the majority and minority leaders in the Senate, in fact, sponsored it.

As those practices easiest to understand as racially discriminatory fell, attention turned to less direct and obvious ways of impairing minority groups’ voting power. During this second generation, which stretched roughly from the early-1980s to the late-2000s, voting rights litigation focused on practices that diluted overall minority group voting strength while not barring individual minority voter’s participation—practices like gerrymandering and use of at-large, as opposed to single-member-district, voting systems. These practices were less visibly discriminatory, more difficult to evaluate, and could, in some cases at least, be thought to promote good ends, like making every city council member responsible to all of a city’s residents rather than just to those in a small geographic area. Second-generation suits enjoyed less support in the courts, particularly the Supreme Court, and engendered debate in Congress about whether they led to a form of racial quotas. Still, although opinion was more equivocal, the courts and Congress approved wider application of the Voting Rights Act to reach many practices and situations it did not before.

In 2009 the Supreme Court signaled the shift to the latest generation. In Northwest Austin Municipal Utility District No. 1 v. Holder, a constitutional challenge to section 5 of the Voting Rights Act, one of the Act’s two central sections, the Court noted that section 5 and its closely related coverage provision “raise serious constitutional questions” because they treat states differently based on 40-year-old findings of past discrimination. And, although it ultimately held in favor of the utility district on statutory grounds, the Court’s constitutional rumblings sent a strong signal that unless Congress modified the law, particularly its coverage formula, the Court would likely hold it unconstitutional in the future. Many also saw the case as signaling a broader change in how the Court would balance federalism concerns against more diffuse burdens on group voting rights.

Congress did not revisit the law. The state-rights arguments resonated with some more deeply than before and states were now burdening individuals’ ability to vote in new ways that some argued strengthened democracy. Increasingly, for example, jurisdictions are enacting practices, like requiring certain forms of identification to vote, and restricting early voting and voting registration windows, that have disproportionate effects on different racial and political groups for what the jurisdictions claim is good intent: preventing voting fraud. One side argues that the disproportionate burdens are the actual purpose and that little, if any fraud, is prevented. The other side argues that any burdens are small and incidental and that fraud is significantly reduced. The initial constitutional challenges to these practices largely failed and hope turned to section 5. Then in 2012 the Supreme Court revisited the constitutionality of section 5 and its coverage provision. In Shelby County v. Holder, it followed through on the warnings it had given three years before and struck down section 5’s coverage provision on federalism grounds. This effectively nullified one of the two central pillars of the Voting Rights Act at a time when Congress is so politically gridlocked that it would be unlikely to revisit the law.

The effective loss of section 5 will not lead states to reinstitute their first-generation practices. They don’t need to. Those interested have discovered other ways of achieving some of the same results that can be more easily defended on both legal and democratic grounds. The United States and others are now challenging some of these practices in places like Texas and North Carolina through section 2, the remaining pillar of the Voting Rights Act. But it is a much more difficult path than section 5 was.

Will these challenges succeed? I’m not optimistic. That many claim the new practices prevent voting fraud means the courts will be less inclined to strike them down absent smoking-gun evidence of invidious intent, which is always hard to find. And these new laws’ partisan benefits to one side in our deadlocked political system mean that Congress is unlikely to revise the Voting Rights Act to address them.

The Voting Rights Act of 1965 in Historical Perspective

by George Rutherglen
John Barbee Minor Distinguished Professor of Law

George RutherglenThe Voting Rights Act of 1965 represented the culmination of a long struggle to make the right to vote regardless of race finally effective. The Fifteenth Amendment guaranteed this right upon its ratification in 1870, but it took nearly a century to provide adequate means for enforcing it. Except for a brief period in Reconstruction, the Fifteenth Amendment had been observed more in the breach than in compliance. The repeal of the federal statutes protecting voting rights, just as much as Plessy v. Ferguson , marked the ascendancy of the regime of Jim Crow .

The Voting Rights Act of 1965 was preceded by the Civil Rights Act of 1957 and then the Civil Rights Act of 1964. The first protected voting, but in a manner that was severely compromised by leaving the burden of proof entirely on the government and guaranteeing defendants a right to jury trial, which southern officials could use to nullify the act. The 1964 Act stopped short of protecting voting in any significant way, addressing mainly discrimination in public accommodations, employment, and federally funded programs. The 1965 Act went far beyond these earlier acts, essentially in switching the burden of proof to defendants, in states that had historically denied the right to vote, to establish that any change in their voting procedures did not result in further discrimination. This “preclearance” evidence had to be presented to the attorney general or the District Court for the District of Columbia. This preclearance procedure was renewed repeatedly, and the list of covered states and localities evolved, in a series of extensions, the latest in 2006.

It was this last extension that was held invalid in Shelby County v. Holder, a decision in which the Supreme Court found that Congress had not done enough to update the evidence used to identify covered jurisdictions subject to the preclearance requirement. Although this decision stopped short of invalidating the preclearance procedure, it now requires Congress to re-examine the evidence of persistent voting discrimination and re-enact the provision identifying covered jurisdiction, a step that Congress is not likely to take in the short term. For this reason, Shelby County has been widely criticized, but the history of voting rights offers two further reasons to be uneasy with the decision: first, the difficulty of enforcing voting rights without stringent procedures that put the burden of compliance on potential violators; and second, the need for congressional and judicial cooperation in putting those procedures in place. The decision is a major step back from recognizing what the historical record reveals and what the Voting Rights Act of 1965 accomplished.