The 100th Day Threat to Voting Rights

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On the 100th day of the first term of the first black president of the United States, lawyers for a small utility district in Travis County, Texas, walked up the steps of the Supreme Court Building to ask the nine justices of the court to dismantle a key provision of the Voting Rights Act of 1965. Ironies abound.

Without the Voting Rights Act, there would be no President Obama. When it was passed, the Voting Rights Act, known as “the crown jewel of the civil rights movement,” began the process of fully realizing the promise of the 15th Amendment of the Constitution, which in 1870 extended the right to vote to African Americans, or at least to African-American men. In the years between 1870 and 1965, however, the vast majority of blacks were largely disenfranchised by Southern legislators and jurisdictions that used intimidation, arcane registration practices, gerrymandering, poll taxes and violence to keep the black population from exercising the franchise. The Voting Rights Act was a result of the literal blood, sweat and tears of civil rights activists, among them Medgar Evers; Fannie Lou Hamer; Andrew Goodman, James Cheney and Michael Schwerner; and a young John Lewis, who nearly lost his life on the Edmund Pettus Bridge in Selma, Ala., in 1965.


The enactment and enforcement of the Voting Rights Act ensured the enfranchisement of black voters across the South and, over the years, made possible the election of over 10,000 black officials at every level of public office, from school boards to Congress, including Lewis. Over the past 40 years, black elected officials have become an integral part of the political landscape of the country. Consequently, white voters have become accustomed to the experience of black political leadership, and black voters have been organized and mobilized at unprecedented levels. These key developments laid the groundwork for the impressive, if unsuccessful, runs of Jesse Jackson for president in the 1980s and the ultimately successful candidacy of Barack Obama last year.

The current challenge to the constitutionality of certain aspects of the Voting Rights Act is ironically timed but certainly not unexpected. Even as Congress—by a unanimous vote in the United States Senate and a nearly unanimous vote in the House—reauthorized its provisions in 2006, forces opposing the Voting Rights Act were planning a legal challenge. Several made little effort to conceal their hopes that a Supreme Court anchored by conservative justices would undo what Congress did when it passed the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendment Acts in 2006.

I can recall testifying in favor of the reauthorization in the summer of 2006, when Texas Sen. John Cornyn (R-Texas) alluded (snidely, it seemed to me) to a hypothetical future legal challenge to the act’s constitutionality. It’s perhaps then no surprise that a mere eight days after Congress reauthorized the act, a case challenging its constitutionality was filed in Texas.

Northwest Austin Municipal Utility District Number One v. Attorney General Eric Holder (formerly Mukasey, and before that Gonzales) challenges the constitutionality of Section 5 of the Voting Rights Act. The most controversial and hard-fought provision of the act, Section 5 requires certain jurisdictions in the U.S. to seek authorization from the Department of Justice or from a federal court whenever they seek to make changes to voting practices or procedures. These “voting changes” can range from changing the location of polling places to increasing the number of city council seats, or switching from electing judges to appointing them. The jurisdictions covered by Section 5 are those that were historically characterized by deeply depressed (and in many cases deliberately suppressed) voter registration and turnout among minority voters. Most of these jurisdictions are in the states of the former Confederacy. But jurisdictions in Arizona and New York are also covered by Section 5’s pre-clearance requirements because of their history of depressed voter registration and participation among language minorities.


The requirement that covered jurisdictions seek approval or “pre-clearance” of voting changes enables local minority communities to learn about any changes planned in their jurisdictions, and, more important, to provide their input on whether such changes are likely to adversely affect voting strength in the minority community. If any of the changes would diminish minority voting strength, or if it is intended to discriminate against minority voters, the Justice Department may object to it.

Prior to reauthorizing the Voting Rights Act in 2006, Congress heard testimony for more than a year and compiled a record of over 15,000 pages before concluding that “the vestiges of discrimination in voting continue to exist.” The evidence before Congress included discrimination against Native American voters in South Dakota and Latino voters in Arizona and Georgia, and against black poll workers in South Carolina, Louisiana, Mississippi, Alabama and a host of other states. Texas, in fact, was specifically identified as having among the worst records of voting discrimination. The forms of discrimination  in various states included the promulgation of racially discriminatory redistricting plans, discrimination against minority poll workers, illegal citizenship challenges to Latino registered voters, discriminatory registration practices and a variety of efforts to diminish minority voting strength in covered jurisdictions.


Since the act was last reauthorized, the Department of Justice has objected to some 620 instance of voting changes proposed by covered jurisdictions under Section 5, and over 600 voting rights lawsuits have been brought by minority voters who successfully challenged discriminatory election practices under Section 2. And there can be no way of assessing the scores and perhaps hundreds of instances in which the requirements of pre-clearance under Section 5 deterred jurisdictions from attempting to implement discriminatory voting changes.

Thus, what was most alarming in this recent hearing was the apparent willingness of some of the justices (Antonin Scalia and Samuel Alito, especially, but also Anthony Kennedy; Clarence Thomas, as usual, was silent) to try to second-guess Congress’ determination that Section 5 continues to constitute an important tool in ensuring minorities’ right to vote. Instead, what you heard were several justices nakedly expressly their own skepticism about the efficacy of the Act,  speculating about  Congress’ motivation in reauthorizing the act. They even supplanted the legislative record with their own ad hoc views about whether intentional discrimination still exists, and about how and whether Section 5 is effective. In several feisty exchanges, Justices Ruth Bader Ginsburg, Stephen Breyer and David Souter repeatedly sought to draw their more conservative colleagues away from speculative musings and back to the facts developed in the record of the case.      


This, I fear, has become the nature of the discourse on race on the current the Supreme Court. Conservative justices press their own view about the state of race and discrimination, and the moderate wing of the Court valiantly tries to focus the justices’ attention on the record before them.  But who needs facts, when you just, well, know?  Remember Chief Justice John Roberts’ simple bromide in striking down affirmative action programs in pupil placement in Seattle and Louisville cases two years ago: “The way to stop racial discrimination is to stop discriminating on the basis of race.” Well, how does he know? In fact, a number of questions asked by the chief justice on Wednesday in the latest challenge to the Voting Rights Act suggest that he knows very little about how racial discrimination works and that he’s unlikely to be better positioned than Congress, voting rights lawyers or minorities living in jurisdictions with a history of discrimination to know how best to counter discriminatory efforts undertaken by covered jurisdictions. Rather than deal with the 15,000-page record amassed by Congress in reauthorizing Section 5, the chief justice reduced the controversy to simplicities, like this question he posed to the lawyer for the NAACP Legal Defense Fund: “Would you say that Southern states are more likely to discriminate against minority voters than Northern states?” Yikes. These, I presume, are the “balls and strikes” that then-Chief Justice nominee Roberts promised he would call as a judicial “umpire.”

Given the voluminous record compiled by Congress, and the specificity of Congress’ findings about the existence of ongoing discrimination in voting, the challenge before the court today is as much about the act’s constitutionality as it is about Congress’ power to identify a problem, amass evidence and pass legislation without second-guessing by the court.


The case will be most certainly be decided by late June when the court’s term ends. By then, we’ll be focused on Barack Obama’s first six months in office, and we may once again pay scant attention to the potential dismantling of the one piece of legislation without which there would be no President Obama.

Sherrilyn A. Ifill is a professor at the University of Maryland School of Law and a civil rights lawyer.

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