“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Justice Ruth Bader Ginsburg, dissenting opinionShelby County v. Holder

Re-Legalizing Electoral Racism; Red State Republicans ‘Free at Last’

June 25, 2013, will go down in infamy as the day when a radically conservative majority of the Supreme Court ripped the guts out of the historic protections of the 1965 Voting Rights Act, “the crown jewel of the civil rights movement” that was so proudly signed by President Lyndon B. Johnson. Congressman John R. Lewis, who was beaten nearly to death by state troopers in the famous “Bloody Sunday” civil rights march in Selma, Alabama, in March 1965 (see photo below), declared the decision “a dagger in the heart” of the Voting Rights Act.

What the 5–4 decision, signed by Chief Justice John Roberts, does, nearly 50 years after its signing, is declare unconstitutional the single most important part of the Act (section 4), which identifies the states and counties that must submit to oversight (or preclearance) by the Justice Department before changing “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” in any “covered jurisdiction.” In effect, the conservative majority struck down section 4 as a sneaky way of nullifying section 5, without actually ruling on the constitutionality of section 5. As the New York Times’s Adam Liptak explains:

The majority held that the coverage formula in Section 4 of the Voting Rights Act, originally passed in 1965 and most recently updated by Congress in 1975, was unconstitutional. The section determined which states must receive clearance from the Justice Department or a federal court in Washington before they made minor changes to voting procedures, like moving a polling place, or major ones, like redrawing electoral districts. . . .

The decision did not strike down Section 5 [which sets out the preclearance requirement], but without Section 4, the later section is without significance—unless Congress passes a new bill for determining which states would be covered.

These jurisdictions that were required to seek preclearance include the very states—mostly in the Old Confederacy—that were the worst offenders against minorities seeking the right to vote. Indeed, it is no accident that it was Shelby County, Alabama—i.e., Birmingham—that brought the suit against the U.S. Justice Department. In the 1960s it was the Justice Department, very often backed up by the National Guard, that was on the front lines of protecting southern blacks against discrimination, vicious racism, and murder.


In “An Assault on the Voting Rights Act,” the New York Times editorial board declared the decision “damaging and intellectually dishonest,” and that was just in the first sentence. In a Times op-ed, Richard L. Hasen, author of The Voting Wars: From Florida 2000 to the Next Election Meltdown, writes:

The court pretends it is not striking down the act but merely sending the law back to Congress for tweaking; it imagines that Congress forced its hand; and it fantasizes that voting discrimination in the South is a thing of the past. None of this is true.

In the Shelby decision, we see a somewhat more open version of a pattern that is characteristic of the Roberts court, in which the conservative justices tee up major constitutional issues for dramatic reversal. First the court wrecked campaign finance law in Citizens United. On Tuesday it took away a crown jewel of the civil rights movement. And as we saw in Monday’s Fisher case, affirmative action is next in line . . . 

John Roberts, who has long sought to weaken the Voting Rights Act, wrote in the majority opinion that because voter registration among black voters is higher than it was at the time the Voting Rights Act was passed, the protections afforded by the Act are no longer needed. (Click here for Justice Ruth Bader Ginsburg’s scathing dissent, in which she wrote, “Hubris is a fit word for today’s demolition of the VRA. . . . The court errs egregiously by overriding Congress’s decision” to reauthorize the Act.) As though mere registration is the same thing as actually being able to vote, or your vote actually being counted. Ask the citizens of counties in Florida and Ohio in the contested elections of 2000 and 2004, or those who were forced to wait in interminable lines in 2008, 2012. The New Yorker’s Amy Davidson points out:

Ginsburg quoted an F.B.I. investigation of Alabama legislators who referred to black voters as “Aborigines” and talked about how to keep them from the polls: “These conversations occurred not in the 1870’s, or even in the 1960’s, they took place in 2010.”

The United States Senate approved an extension of the law in 2006 by a  98–0 vote, and the House by a 390–33 vote; 33 Republicans (all white men, except one white woman, from North Carolina) voted against it. Former President George W. Bush, who nominated Roberts as chief justice, said many fine words about the importance of the Voting Rights Act in a ceremony at the White House. If you watch the videotape he sounds sincere; perhaps he was. Had the Voting Right’s Acts provisions been truly observed and enforced in the election of 2000, however—and had a similar 5–4 Supreme Court decision not ruled that Florida’s recounting of votes be stopped—George W. Bush would not have been in the White House.

A Nation in Reverse

Coincidentally, we’re sure, Confederate states such as North Carolina, Mississippi, Alabama, Texas, Georgia, and Florida (of course Florida!) immediately, on the same day as the Court’s ruling, rolled out new legislation to restrict voting (less early voting, no Sunday voting, no voting on the same day you’ve registered). The AP’s Bill Barrow reported, “Across the South, Republicans are working to take advantage of a new political landscape after a divided U.S. Supreme Court freed all or part of 15 states, many of them in the old Confederacy, from having to ask Washington’s permission before changing election procedures in jurisdictions with histories of discrimination.”

And Ed Kilgore writes at Washington Monthly’s Political Animal blog:

. . . across the South, we’ve heard cheers from Republicans eager to return to a time when the feds didn’t interfere with the sovereign ability of white southerners to decide who was worthy to vote. It’s like watching a tape of the 1965 march across the Edmund Pettus Bridge in Selma in reverse.

One man’s forward is another’s backward. As some incremental, progressive legislative and judicial victories move liberties forward (healthcare reform and marriage equality are notable examples), other battles seemingly fought and won long ago are being reversed, dismantled. The United States is being torn asunder by well-funded and insatiable conservative forces that seek to drag the nation back to the days before the civil rights movement, before the women’s liberation movement or Earth Day, before the New Deal, before Theodore Roosevelt’s establishment of national parks, environmental protections, and food and drug regulations. Verily, sadly, after yesterday’s odious ruling by the conservatives on the Court, William Greider’s prophetic 2003 article “Rolling Back the 20th Century” is more true than ever.

God bless America. Please. In the words of the Old Testament prophet Amos, often quoted by the Rev. Martin Luther King Jr., one of the guiding-light heroes of this blog, “Let justice roll down like waters, and righteousness like an ever-flowing stream” (Amos 5:24).


Further reading:

Supreme Court Invalidates Key Part of Voting Rights Act” (Adam Liptak, New York Times, 6/26/13) “The Court Rejects the Voting Rights Act—and History” (Amy Davidson, The New Yorker, 6/26/13) “What the Supreme Court Doesn’t Understand About the Voting Rights Act” (Ari Berman, The Nation, 6/25/13) “Supreme Court: The Voting Rights Act Worked—So Now It’s Unconstitutional” (Tim Murphy, Mother Jones, 6/25/13) “Free at Last! Say Southern Republicans” (Ed Kilgore, Washington Monthly/Political Animal, 6/25/13) “The Strategy Behind ‘Voter Fraud’ ” (LNW 11/5/12) “Voter Suppression: The Confederacy Rises Again” (Ari Berman, The Nation, 9/4/12)


Top photograph by Rod Lamkey Jr./ZumaPress, published in Mother Jones online.