Will Congress undo 50 years of progress on voting rights?

Last week, the Voting Rights Act (VRA) of 1965, one of the most consequential pieces of legislation in U.S. history, turned 50. It’s not in great health, but it’s alive, and, more importantly, it can be restored to health. The question is whether we’re willing to play our part in its recovery.

The VRA was the result of virtuoso political action — in the streets, in the White House, and in Congress, and by Democrats, Republicans, and independents — mustered against endemic injustice. Generally speaking, voting rules and regulations are set by local authorities, and for decades, those rules and regulations worked to explicitly disenfranchise people of color, especially in the South. Barriers such as the grandfather clause, the poll tax, and the civil literacy test, were employed to provide a quasi-legal rationale for stripping citizens of their vote. In order to avoid legal trouble in federal courts, the laws were applied broadly, with a lot of power given to local authorities to decide who did or did not meet the criteria required to vote, and if those laws also disenfranchised women and working class whites, local elites didn’t lose a lot of sleep over it. Starting in the 1950s, Congress passed legislation trying to remedy the problem, but it was the 1965 VRA that finally drove a stake through the heart of Jim Crow voting rules.

Anyone who has seen a cheesy Dracula sequel knows that vampires can come back when the stake is removed, but in ’65, it really seemed like the monster was decisively defeated.

Martin Luther King Jr. and Rosa Parks join President Johnson at the signing of the Voting Rights Act
Martin Luther King Jr. and Rosa Parks join President Johnson at the signing of the Voting Rights Act

What set the VRA of 1965 apart from its predecessors was its trigger mechanism. Section 4 of the VRA said that if less than 50% of eligible voters in a voting jurisdiction had registered to vote by November 1, 1964, and the local rules placed any kind of test as a barrier between citizens and the franchise, then those voting rules were declared invalid. Until new rules were passed, no one in that jurisdiction could vote. And according to Section 5 of the VRA, any new rules had to be approved by the Justice Department. It wasn’t necessary to prove motive, or to deal with the “universal” nature of the disenfranchisement regulations. When the law was passed, the trigger was pulled, and many states were affected, including the entire Deep South.

The VRA worked.

It worked so well, in fact, that in 2013, the Supreme Court used the VRA’s own success as an excuse to gut it. We are now living in the aftermath of that decision, the case of Shelby County v. Holder. According to Chief Justice John Roberts’ majority opinion in Shelby, the Voting Rights Act has proven to be so successful “at redressing racial discrimination and integrating the voting process,” that the old trigger mechanism had become an anachronism. As a result, the states of the Deep South were freed from the Section 5 requirement that they obtain federal approval for changes in their voting regulations.

And so, by the beginning of 2014, the states of the Deep South had all enacted new restrictions on voting that disproportionally affected poor voters, rural voters, elderly voters, and voters of color. Whether Roberts’ faith in a post-racial America has been shaken by those changes is unclear.

Shelby did prove useful in two ways, however. First, it drew our attention to other sections of the VRA. Section 2, for example, prohibits any “voting standard, practice, or procedure that results in the denial or abridgment of the right of any citizen to vote on account of race, color, or membership in a language minority group.”

For a long time, Section 2, which has no expiration date, has been seen as a kind of essential legal background to Sections 4 and 5, which have done the heavy-lifting on voting rights cases. But just last week, a federal appeals panel of the reliably conservative Fifth Circuit ruled that Texas’ post-Shelby voter ID law was so burdensome to minority voters that it was unconstitutional.

In other words, civil rights attorneys and judges — even conservative judges — are adapting to the post Shelby world, finding new, if less reliable, ways to combat voting inequality.

Second, the Shelby ruling raised a good point about the nature of racial discrimination at the polls. Section 4 has provided the Department of Justice with an effective means of protecting minority voters in the former Confederate states, but challenges to voting rights in other parts of the country have been far less burdened by federal attention. Wisconsin made voting harder on minority and poor citizens long before Texas did, and in 2012, the Ohio legislature actually went so far as to cut back voting precinct hours in Democratic and minority neighborhoods while adding extra voting hours in Republican and white ones!

When Governor LePage and his GOP allies in our state legislature tried to make it more difficult for Mainers to vote, Mainers fought back at the polls, and won handily. And despite the governor’s specious claims of voter fraud, Mainers recognized that their rights were threatened — not protected — by cutting back on access to the ballot.

Indeed, Mainers — despite the overwhelming white population of our state — have a vested interest in rebuilding the VRA for a new era. Since the days of Jim Crow, discriminatory interference with the right to vote has targeted people of color, but it has also decimated the rights of the poor and elderly, and especially the rural poor and elderly. We provided one of the few, and one of the earliest, victories in the fight against the post-Shelby campaign to curtail voting rights, which is something to be proud of, but our job is not done. In the spirit of the great Democratic and Republican leaders of 1965, the moment has come for Representatives Pingree and Poliquin, Senators Collins and King, to act. Congress needs to amend the VRA for a new century, and our members of Congress need to make it clear where they stand in the fight for the vote.

And the time has come for us to act too, to demand legislative action, and to protest, and spend, and speak, and vote, to make sure that the heroes of 1965 didn’t fight in vain, and to make sure that Jim Crow stays dead.

Photo via Flickr/Michael Rosenstein

About Ron Schmidt

Avatar photoDr. Ronald Schmidt is an Associate Professor of Political Science in the Department of History and Political Science at the University of Southern Maine.

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