The Voting Rights Act Turns 50
Laura E. Cress
August 2015 marked the golden anniversary of a piece of civil rights legislation that is largely considered the most successful ever adopted by the United States Congress—the Voting Rights Act of 1965 (VRA). Introduction to Federal Voting Rights Laws, U.S. Dep’t of Justice, http://www.justice.gov/crt/introduction-federal-voting-rights-laws-1 (last visited Oct. 11, 2015) [hereinafter VRA Intro]. Fifty years ago on August 6, 1965, President Lyndon B. Johnson signed the VRA into law to combat a near century of racial discrimination that continually contaminated the voting process in parts of the country, even after the enactment of the Fifteenth Amendment’s guarantee of the right to vote without discrimination. Shelby v. Holder, 133 S. Ct. 2612, 2633 (2013) (Ginsburg, J., dissenting). But in 2013, minority citizens protected by the Act suffered a setback when the Supreme Court invalidated a key provision of the Act in its Shelby v. Holder decision. Id. The VRA today has a less profound effect on disenfranchised voters’ rights than the Act Congress enacted 50 years ago, and renewed as recently as 2006. Shelby, 133 S. Ct. at 2621 (majority opinion); Adam Liptak, Supreme Court Invalidates Key Part of Voting Rights Act, N.Y. Times (Jun. 25, 2013), http://nyti.ms/17zP82p.
Notwithstanding the protections purportedly afforded to minority citizens under the Fifteenth Amendment, minority voters continued to encounter obstacles at the polls in post-Civil War America. Shelby, 133 S. Ct. at 2619. In 1870 when the Fifteenth Amendment was enacted, it superseded state laws that prohibited African Americans from voting, and as a result, many recently freed slaves registered to vote and suddenly comprised the majority of the eligible voting population in Southern states. VRA Intro, supra. African American candidates were elected to office, and for the first time in their lives they had the opportunity to significantly participate in their own governments. Id.
However, some regions in the South were strongly resistant to the new political climate, and they resorted to violence and intimidation tactics through the Ku Klux Klan and other terrorist organizations to discourage African American and minority voter turnout. Id. Fraudulent methods were also deployed to discount the effect of lawfully-cast minority votes. Id. States amended their constitutions and enacted Jim Crow laws to further disenfranchise African American voters. Jim Rutenberg, A Dream Undone: Inside the 50-Year Campaign to Roll Back the Voting Rights Act, N.Y. Times (July 29, 2015), http://nyti.ms/1IJxeN8. The states instituted poll taxes and all-white primary elections, and required minority voters to pass literacy tests before allowing them to register. Shelby, 133 S. Ct. at 2633 (Ginsburg, J., dissenting); VRA Intro, supra. Gerrymandering election districts further diluted minority voting strength and minimized the number of minorities elected to office. VRA Intro, supra.
In 1957, Congress “began to assert its electoral authority” and enacted “a series of legislative fixes,” including the Civil Rights Act. Rutenberg, supra. The Act created the Civil Rights Division of the Department of Justice, and the Attorney General was given authority to monitor and investigate civil rights abuses, including the authority to seek injunctive relief against the states for Fifteenth Amendment violations. VRA Intro, supra. However, the arduous battle against disenfranchisement of minority voters continued, and case-by-case litigation was only mildly successful to combat the growing problem. Shelby, 133 S. Ct. at 2633. Injunctions against the states were difficult and tedious cases to prepare, and the litigation process was slow. Id. As methods of voting discrimination were identified and subsequently prohibited by law, other forms of discrimination were enacted by the states to replace them. Id. Despite the efforts of the Civil Rights Act, minority voters continued to experience discriminatory tactics and infringement of rights while litigation against the states made its way through the courts. Id. at 2633–34.
Responding to these challenges, after nearly a century of systematic failure to fulfill the Fifteenth Amendment’s guarantee, Congress implemented the Voting Rights Act in 1965. VRA Intro, supra. African American voter registration increased more in the five years after the VRA was enacted than in the previous century, particularly in states subject to Section 5 of the Act. Shelby, 133 S. Ct. at 2634. Section 5 established more robust voting rights protections to minorities through a process called “preclearance.” Id. Select states and individual jurisdictions with histories of voting discrimination were required to obtain federal approval before implementing any changes to voting laws, and the burden was on those implementing the changes to show that the laws did not have a discriminatory “purpose [or] . . . effect.” Id.; Fresh Air: The Modern Struggle for Voting Rights in America, Nat’l Pub. Radio (Aug. 10, 2015) (downloaded using iTunes). Opponents challenged Section 5 as an unconstitutional infringement upon the states’ rights, but the Supreme Court upheld its constitutionality in South Carolina v. Katzenbach, 383 U.S. 301, 328 (1966). Although the VRA, including the Section 5 preclearance requirements, were originally set to expire after five years, Congress reauthorized the Act in 1970, 1975, 1982, and 2006. Shelby, 133 S. Ct. at 2620–21 (majority opinion). The Act has resulted in a lower racial gap in voter registration and turnout in the states originally subject to Section 5 protection than nationwide. Id. at 2618–19.
Despite the continuing success of the VRA, in 2013 the Supreme Court, in a 5-4 decision, struck down key provisions of the Act in its Shelby County v. Holder decision. Id. at 2627–32. The Court’s decision effectively ceased enforcement of the VRA by declaring Section 4 unconstitutional, which eliminated the formula subjecting jurisdictions to the preclearance requirements under Section 5. Liptak, supra. The majority opinion criticized the VRA for relying on 40-year-old data, concluding that the Act was necessary when it was first upheld by the Court in 1966, but now the “country has changed” and restrictive measures are no longer needed since racial gaps for minority voters were narrow or non-existent. Shelby, 133 S. Ct. at 2626–32.
The Shelby decision had immediate consequences on voting laws in some states because key VRA provisions could no longer effectively deter restrictive voting laws prior to enactment. Fresh Air, supra. States that were previously subject to the Section 5 preclearance requirements of the VRA began enacting laws with proven effects of disenfranchisement. Id. One of the VRA’s victories—to prevent a burdensome legal process for the disenfranchised—was once again shifted back to the minority voters who wished to challenge the discriminatory effect of any law. Id. For example, North Carolina legislators enacted a sweeping voting law that eliminated nearly half of the early voting period, ended same-day registration, prohibited “out-of-precinct” voting, and introduced new, strict photo identification requirements for voters. Jim Rutenberg, What’s Left of the Voting Rights Act?, N.Y. Times (Aug. 5, 2015), http://nyti.ms/ 1KQcBPS; see also Women Voters v. N.C., 769 F.3d 224 (4th Cir. 2014) (three cases consolidated on appeal, all challenging the constitutionality of the state’s new voting restriction laws). These measures, known as second-generation barriers, disproportionately affect minority voters’ access to the polls. Shelby, 133 S. Ct. at 2637 (Ginsburg, J., dissenting). As Congress concluded in 2006 when it reauthorized the VRA and the Section 5 preclearance for an additional 25 years, second-generation barriers function as “[e]xtensive ‘[e]vidence of continued discrimination[.]’” Id. at 2636.
It was nearly a century before the protections of the Fifteenth Amendment were fully enforced. Shelby, 133 S. Ct. at 2633. That particular century of congressional enforcement was largely deemed a failure. Id. at 2619 (majority opinion). The Voting Rights Act has been in effect for only half a century, but the Shelby decision has already rendered its enforcement largely ineffective. Fresh Air, supra. This will remain an issue to watch as the fight for equal access to the polls under the Voting Rights Act continues, and litigation similar to that in North Carolina makes its way through the judicial process, possibly landing before the Supreme Court once again. As our Nation approaches the 2016 election, it will be particularly interesting to see how the Shelby decision affects voter turnout in what will be the first presidential election since 1965 without the full protection of the Voting Rights Act. Fresh Air, supra.
Laura Cress is a second year law student in the evening program at the University of Baltimore School of Law. She currently serves as Law Scholar for Professor Tiefer and Staff Editor for Law Review. Ms. Cress is a paralegal for the Federal Judiciary in the Office of General Counsel at the Administrative Office of the U.S. Courts. She is interested in civic education and engagement and issues affecting judicial administration and the federal courts.