Shelby County v Holder: Bending Away From Justice

The decision by the Supreme Court this week, in Shelby County v Holder, to strike down a key provision of the Voting Rights Act of 1965 (VRA) has been labeled a “dagger in the heart of the Voting Rights Act” by Congressman John Lewis.  Congressman Lewis has unique standing to discuss this issue as he was injured in the 1965 march from Selma to Montgomery that called for voting rights protections in Alabama.  Congressman Lewis and his 600 marchers only got as far as the Edmund Pettus Bridge when their march was stopped by police with tear-gas, billy clubs, and whips.  In response, President Johnson introduced and later signed into law the VRA.

Sections 4 and 5 of the VRA introduced “extraordinary measures” to combat the history of racial discrimination in voting evidenced almost exclusively at the time across the Deep South.  Section 5 required that any changes to election laws (from moving a polling place, all the way to passing a redistricting plan) in covered states must be submitted for federal preclearance before being enacted.  Section 4 set out the formula for coverage of jurisdictions with past experience in enacting voting laws that discriminated against racial and ethnic minorities.  In 1965 only Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia (and parts of North Carolina and Arizona) were included in section 4’s coverage formula.  The VRA was time limited and was reauthorized periodically, with the most recent reauthorization in 2006 when it passed 390-33 in the House and 98-0 in the Senate.

It was a closer contest this week in the Supreme Court.  By a majority of 5-4 the Supreme Court struck down section 4’s coverage formula because it found the “disparate treatment of states” could no longer be justified. The Court found that in 1965 the section 4 covered jurisdictions evidenced “discrimination…on a pervasive scale” but that today there is no such evidence.  As Justice Ginsburg outlined in her dissent, Congress produced over 15,000 pages of evidence about the continuing discrimination in covered jurisdictions yet, she explains, the “Court makes no genuine attempt to engage with the massive legislative record that Congress assembled.”

People fought and died for their right to vote, they worked hard to protect that right by ensuring passage of the Thirteenth, Fourteenth and Fifteenth Amendments, and they worked again to see the passage, and each reauthorization, of the VRA.  Congress recognized that the fight was not over in 2006, and likely would not be over in 2026. 

As Professor Joseph Fishkin explains, “It was the opponents of Reconstruction and the Reconstruction Amendments who first put forward the argument that the enforcement of black civil rights against the Southern states in particular was an affront to those states’ equal sovereignty.”  Further, he suggests section 4 coverage formula “carries with it an implication that history is not dead.”  It is, after all, largely former Confederate states that are included in section 4, and while still direly needed, federal oversight gives a “faint echo” of Reconstruction itself.

True it is that, as Congress said in 2006, the forms of discrimination today are “more subtle than the visible methods used in 1965” but “the effect and results are the same, namely a diminishing of the minority community’s ability to fully participate in the electoral process.” Congress did the right thing in 2006. We should honor Congress’ finding and let them continue to bend towards justice, not allow the Supreme Court to take away the power the federal government gained through the post-Civil War Amendments to stop discrimination, both obvious and hidden.