The Voting Rights Act of 1965, one of the monumental achievements of President Lyndon B. Johnson’s presidency, was designed to not only eliminate voting barriers for African Americans, but also to monitor attempts to restrict their access to the ballot box. The act is perhaps the most important civil rights legislation of the 20th century, and it remains such a potent vehicle for ensuring voting rights for people of color because it monitors a steady protection for those whose voting rights are at risk.
Earlier this week, in a surprisingly united decision, the Supreme Court voted—8-to-1—to uphold the constitutionality of Section 5 of the Voting Rights Act. The Northwest Austin Municipal Utility District Number One case challenged Section 5 of the Voting Rights Act shortly after it had been signed into law in 2006 by former President George W. Bush and a bipartisan Congress. The only justice to dissent from this conclusion was Clarence Thomas, who argued that the time had arrived to overhaul Section 5. This is not the first time that Thomas has stood alone in challenging the constitutionality of a provision designed to protect minority rights.
The case raised two essential arguments pursuant to Section 5. This section requires certain districts with a history of racial discrimination in voting to seek preclearance—prior approval—for any changes in its voting procedures. The utility companies argued that they should not be subject to this preclearance requirement because they did not have a history of discriminating against racial minorities in voting practices. An alternative remedy raised by the Northwest Austin Municipal Utility District Number One was to grant them exemption from this requirement. They also urged the Supreme Court to find the entire preclearance provision of the Voting Rights Act unconstitutional, on the grounds that there was not sufficient evidence in the congressional record to support claims of continued discrimination.
It was this second argument that posed a serious risk to minority voting rights because it raised the possibility that the preclearance requirement, which has been an important tool for civil rights groups to monitor unfair voting practices, would be eliminated. Fortunately, in the opinion issued, Chief Justice John Roberts concluded that the court had the responsibility to review legislative actions, and, in this case, to also exercise judicial restraint. That restraint was evident by the 8-1 decision to allow the Northwest Austin Municipal Utility District Number One to bail out of the position, but its refusal to rule on the broader question of whether Section 5 of the Voting Rights Act was constitutional.
This is a surprising and important victory for the civil rights community. Over the course of the past decade, there have been several important cases brought to the Supreme Court challenging the rights of racial minorities in this country. These have included assaults on such basic issues as the right to a diverse education, the right of school districts to implement voluntary programs aimed at promoting racial integration and other measures designed to level the playing field in terms of race. The civil rights community has usually been on the losing side of these decisions, with the exception of Justice Sandra Day O’Connor’s 2003 opinion upholding the claim of the University of Michigan’s effort to create a racially diverse class of university and law students. That 5-to-4 decision still remains the law of the land, although Michigan voters subsequently voted to eliminate the consideration of race in all public programs, including college and university admissions in a referendum campaign spearheaded by Ward Connerly and others during the 2006 midterm elections.
With the 2007 decision on Parents Involved, written by Chief Justice Roberts outlawing the use of most voluntary measures to integrate public schools, many feared that the Northwest Austin Municipal Utility District Number One case would mark the beginning of the end of any effort to promote racial diversity in employment, voting and education. The Supreme Court’s decision, by a large majority, that the Voting Rights Act of 1965 remains valid brings to a welcome conclusion this year’s Supreme Court rulings. Hopefully, it will inspire new efforts by civil rights organizations to articulate and expand ongoing efforts to eliminate inequality and discrimination.
While this decision must be celebrated, this is not the time to sit back and relax. I suspect that, in a very short time, many other institutions and organizations will attempt to challenge the clearest function of Section 5 of the Voting Rights Act. Some of these challenges are likely to be substantial, and some may prevail. Nonetheless, it is doubtful that any decision that will directly attack the constitutionality of Section 5 of the Voting Rights Act will reach the Supreme Court anytime soon, and Justice Thomas’ lone dissent offers no comfort to those who are seeking to overrule this most important act.
What the decision on June 22 suggests to the civil rights community is that it must stay vigilant in its efforts to document, monitor and beat back voter discrimination practices. The old use of poll tax and literacy tests have largely been eliminated, but they have been replaced by efforts to intimidate, confuse and outright mislead minority voters when they attempt to exercise their right to vote. In addition, voter identification and felony disenfranchisement laws disproportionately harm minority voters, and these should be challenged in court and in state legislatures. Examples of discriminatory practices must be monitored and documented so that the congressional record is clear that ours is not yet a race-neutral voting process. In this last election alone, we saw efforts to intimidate minority voters, to refuse to register voters and to demand additional identification and information from minority voters in some urban districts that are not widely requested in other districts. We also saw instances of abrupt changes in polling places, rules posted in languages that voters could not comprehend, and other seemingly neutral strategies and practices that, in reality, were intended to suppress minority turnout.
The Northwest Austin Municipal Utility District Number One case reminds us that the battle for equal voting rights is far from over, and that the election of President Barack Obama, while an event that should be celebrated, is not a panacea for racial discrimination and inequality. The persistence of the civil rights leaders of the 1950s and 1960s reminds us that we must remain vigilant today in our determination that every person has the right to vote and that every vote is counted. There is no other way to ensure a fair and equitable democratic system.
Charles J. Ogletree Jr. is the executive director of the Charles Hamilton Houston Institute on Race and Justice.