Supreme Court Hears Voting Rights Act Challenge: The Legal Fight to Protect White Power

Voting Rights Act Case
The Supreme Court has been hearing the challenge to the Voting Rights Act

AFRICANGLOBE – The Voting Rights Act (VRA) signed into law by President Lyndon Johnson in 1965 struck down laws supporting Jim Crow segregation and other measures designed to disenfranchise or disempower Black voters. When Congress enacted the law in 1965, it determined that racial discrimination in voting was prevalent in certain areas of the country, particularly in the South. It has been renewed four times. In 2006, Congress voted overwhelmingly to reauthorize Section 5 for another 25 years. The vote was 390-33 in the House and 98-0 in the Senate.

Opponents of the act say it’s outdated and no longer necessary. That it infringes upon states’ rights or sovereignty, and the South is being unfairly punished for racial discrimination that no longer exists. They argue that the country now has over 10,500 Black elected officials, including the president, and is in effect “post-racial” in voting practices.

The case that has the Voting Rights Act in jeopardy is Shelby County, Alabama, v. Holder. Shelby County, a predominately White suburb of Birmingham, wants the Supreme Court to declare a part of Section 4 and Section 5 of the Voting Rights Act unconstitutional. The Court began hearing the case in March of this year. They will rule on whether Congress’ decision in 2006 to reauthorize Section 5 under the pre-existing coverage formula of Section 4 of the Voting Rights Act exceeded its authority under the 14th and 15th Amendments and thus violated the 10th Amendment and Article IV of the Constitution.

Shelby County attorneys argue, “The violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains.” “The children of today’s Alabama are not racist and neither is their government,” wrote Alabama Attorney General Luther Strange.

Alabama has several supporters of its outlook on the high court. In 2009, Chief Justice John Roberts said, “Things have changed in the South.” He wrote: “The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for pre-clearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.”

In opening oral arguments on the Shelby County case, Justice Antonin Scalia called the act a “perpetuation of racial entitlement.”

Yet the law’s intent is to protect against the entitlement of primarily White men calling the shots and legislatively protecting the unchecked ability to do so. It’s about a fair playing field and making sure biased, bigoted or prejudiced lawmakers are not able to fix the rules to empower their group over others.

Make no mistake about it – the fight over the Voting Rights Act is about “power, access to power and representation.” It’s about who makes the rules as to who can vote, when and where they vote and who and what they can vote for. It is a fight about turnout – limiting the turnout of some, enhancing that of others. As civil rights attorney John Brittain puts it, “It’s a fight over a defensive procedural tactic that puts the burden on jurisdictions to prove it is not their intent to discriminate.”

Here’s a quick overview of the Voting Rights Act:

  • Section 2 prohibits voting discrimination and any voting practice or procedure that has a discriminatory result. It prohibits drawing election districts that improperly dilute minorities’ voting power. This section is permanent and does not require renewal.
  • Section 3 is how jurisdictions come to fall under or “bail in” to federal scrutiny. It’s the process by which jurisdictions found to have a “pocket” of discrimination may be required to seek pre-clearance under Section 5. Section 4 provides a formula to identify those areas and sets remedies. The jurisdictions covered under the act include Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina and most counties in Texas and Virginia. Jurisdictions in California, Florida, New Hampshire, North Carolina, South Dakota, Michigan and sections of New York City are also covered under the act.
  • Section 4 also guarantees the right to register and vote to those with limited English proficiency. It also addresses the ability of members of language minority groups to get information about the electoral process.
  • Additionally, Section 4 provides “bailout” from coverage under the act. To qualify, a jurisdiction must show that for the past 10 years it has not violated the act. Exceptions may be made for small, immediately corrected violations. The bailout applicant must show that it has worked to eliminate discriminatory voting practices and it has improved minority access to the electoral process.
  • Section 5, or “pre-clearance” – the “heart of the Voting Rights Act” – requires that areas of the country with a history of voter suppression and intimidation determined by Section 4 must submit any changes in their election laws or attempt to change “any voting qualification or prerequisite to voting or standard, practice or procedure with respect to voting” in any “covered jurisdiction to the Department of Justice or a three-judge panel of the District Court of the District of Columbia for approval.

Voting Rights Act supporters oppose shifting the “burden of proof” to the people or “plaintiffs” as opposed to those covered jurisdictions that have shown time and again they will try to slip something unsavory and unfair past the people.

If opponents of the act have their way, plaintiffs – be they private citizens or the United States Department of Justice – will have the burden of proving intent to discriminate, which for a private citizen will be both costly and discouraging in most cases.

Conservative “post-racialists” pretend that colorblindness is now the order of the day. Yet in 2011 and 2012, 19 states passed more than two dozen measures that would have made it harder to vote. The Brennan Center for Justice called these schemes “the biggest rollback in voting rights since the Jim Crow era.” Those measures included voter ID laws – which, some argue, are the “modern day equivalent of poll taxes” – early voting cutbacks and curbs on community-based voter registration drives, all of which disproportionately impacted minority and Democratic Party voters.

Moreover, in the last decade or so, lawmakers have broken up majority-minority districts with questionable redistricting practices. African-American and Latino voters’ names are routinely purged from voter lists under the pretext that election officials were cleaning them up. There have also been attempts to suppress voting – mostly Democratic – in states like Ohio and Florida that played politics with voting hours in predominately minority precincts.

Most of the states passing restrictive voter ID laws are in the South and must seek pre-clearance under Section 5. They include states like Texas, South Carolina, Virginia and Florida in the South and Pennsylvania and Wisconsin in the North, just to name a few. Voter ID laws in Texas, South Carolina and Wisconsin were suppressed by the courts prior to the 2012 elections.

Part Two