Today I’d like to discuss Voting Rights. Despite the fact that it is 2018, some states and local governments are still actively restricting the rights of many people, mostly minorities, to vote.
The United States Constitution originally left voting procedures and voter qualifications up to the individual states. Following the Civil War, the 13th, 14th and 15th Amendments were ratified. The 13th prohibits slavery, the 14th guarantees citizenship to anyone born in the United States and equal protection under the laws, and the 15th prohibits discrimination of voting rights based on race, color or previous condition of servitude. These amendments gave Congress the power to enforce these provisions through appropriate legislation.
Congress made some halfhearted attempts in the following years to enforce voting rights, but many states found creative ways to disenfranchise minority voters. It wasn’t until the 1920s that the 19th Amendment guaranteed women the right to vote in all states.
The civil rights movement in the 1950s brought voters’ rights issues to the forefront and legislative progress was made with the Civil Rights Act of 1957, the Civil Rights Act of 1960, and the Civil Rights Act of 1964. In 1965, President Johnson signed into law the “Voting Rights Act of 1965”. Congress has amended it five times since then to strengthen its provisions.[i]
The Act has a number of provisions. It prohibits discriminatory voting laws based on race, color or language. It specifically prohibits literacy and other qualification tests. In section 5 it created a preclearance requirement for any covered jurisdictions to received federal approval before implementing changes to their voting laws. Without this requirement, states could make changes that would last until they could be challenged in court, which could take several years. The jurisdictions subject to section 5 would be determined through a formula set forth in section 4. Section 5 was originally intended to last 5 years. Congress renewed section 5 for 5 years in 1970 and 7 years in 1975. In 1982, Congress extended section 5 for 25 years and in 2006 for another 25 years. This has been the framework by which the federal government has protected voring rights for over 50 years.
There has been a recent and massive change to the Voting Rights Act, let’s take a look at the Supreme Court case interpreting the Voting Rights Act of 1965. In 2013, the Supreme Court, in Shelby County, Alabama v. Holder, Attorney General, et al., 570 U.S. 2 (2013), held that Section 4(b) and Section 5 of the Act are unconstitutional.[ii] The decision was 5-4 with the opinion written by Chief Justice Roberts, joined by Justices Scalia, Kennedy and Alito, with Justice Thomas concurring. Justices Ginsburg, Breyer, Sotomayor and Kagan dissented.
Section 4, which set forth the formula to decide what jurisdictions would be subject to Section 5, was enacted in the 1960s, based on 1960s data and circumstances. It applied criteria such as the use of literacy tests, very low voter registration and turnout rates to determine what jurisdictions were covered by section 5. The Court noted that in Mississippi in 1965, black voter registration was 6.4% and the difference between black and white voter registration was 60%. In 2004 the black registration rate in Mississippi was 76%, almost 4 points higher than white registration and black voter turnout exceed white turnout in 5 of the 6 states originally covered in 1965.
Chief Justice Roberts pointed to these statistics and said that the formula was outdated and to apply those standards to today was inappropriate. Remember that bit from the beginning, where Congress can enforce the amendments with “appropriate legislation”? The Court held that section 4 is no longer appropriate.
So this means that those states and other jurisdictions that were subject to federal oversight are now free to enact laws or pursue policies, knowing the only way to fight unconstitutional restrictions on voting is through individual lawsuits. This costs money and takes time. Which many voters don’t have, particularly the poorer minorities that are the targets of these attacks.
The other provisions of the VRA remain in effect, but enforcing them just became much more difficult.
Next time we’ll find that those statistics Justice Roberts relied on have changed in just the past 5 years and I’ll take a look at some of the ways voting rights are restricted.
[i] https://www.ourdocuments.gov/doc.php?flash=false&doc=100
[ii] https://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf
The author[s] is solely responsible for this blog submission. It does not represent the position of the New York State Bar Association or its Committee.