Hank Sanders grew up in segregated, rural southern Alabama and in 1971 moved to Selma — the birthplace of the Voting Rights Act. Before the VRA, only 393 of the 15,000 black voting-age residents in Dallas County, where Selma is located, were registered to vote. Less than a year later, after federal registrars arrived in August 1965, more than 10,000 black voters had been added to the rolls. Sanders experienced firsthand how the VRA transformed Selma and the rest of the country. In 1983, he became the first African-American state senator from the Alabama Black Belt since Reconstruction, representing a new majority-black district created by the VRA.
Thirty years later, Sanders watched in disbelief this June as the Supreme Court overturned the centerpiece of the VRA in Shelby County v. Holder. "It’s the most destructive Supreme Court decision in my lifetime," Sanders said. "It reverses the very foundation of all the progress that we have made." Reactions in Selma, he said, "ranged from shock to resignation."
The Court’s conservative majority struck down Section 4 of the law, which determines how states are covered under Section 5 — the vital provision that requires states with the worst history of racial discrimination in voting, dating back to the 1960s and 70s, to clear electoral changes with the federal government. Without Section 4, there’s no Section 5. The most effective provision of the country’s most important civil rights law is now a ghost unless Congress resurrects it.
"We have no power under the Constitution to invalidate this democratically adopted legislation," Justice Antonin Scalia wrote in his dissent on the Defense of Marriage Act. Yet that reasoning didn’t stop Scalia and Chief Justice John Roberts from gutting the VRA, which has been overwhelmingly reauthorized four times by Congress (1970, 1975, 1982, 2006) and signed by four Republican presidents (Nixon, Ford, Reagan, Bush). "The Voting Rights Act became one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history," Justice Ruth Bader Ginsburg wrote in her fiery dissent.
The Roberts majority struck down Section 4 for violating the "'fundamental principle of equal sovereignty' among the States," an argument with roots in Southern segregationist opposition to Reconstruction. (In a biting rebuke, Judge Richard Posner, the pre-eminent legal theorist at the University of Chicago, wrote that "there is no such principle" of constitutional law and that "the opinion rests on air.") The Roberts decision ignored 250 years of slavery in America, nearly 100 years of Jim Crow, and fifty years of persistent attempts to subvert the VRA. The Justice Department blocked 1,116 discriminatory voting changes from taking effect under Section 5 from 1965 to 2004 and objected to thirty-seven electoral proposals after Congress reauthorized the law in 2006. "The Supreme Court didn’t recognize the degree to which voter suppression is still a problem around the country," President Obama, visiting Senegal, said following the decision.
Freed from Section 5, the states of the Old Confederacy will dust off the pre-1965 playbook, passing onerous new voting restrictions that can be challenged only through a preliminary injunction or after years of lengthy litigation, often in hostile Southern courts, with the burden of proof now on those facing discrimination rather than on those who discriminate. "Without Section 5, all kinds of things will be passed to limit the right to vote," says Sanders. "I can’t anticipate all the creativity we will run into." Immediately after the decision, five Southern states — Alabama, Mississippi, South Carolina, Texas and Virginia — rushed to implement new voter-ID laws that disproportionately affect young and minority voters. Voting changes found to be discriminatory by a federal court last year — like the Texas voter-ID law — will go into effect. ("Eric Holder can no longer deny #VoterID in #Texas," Texas Attorney General Greg Abbott tweeted the morning of the decision.) Beyond voter ID, states like North Carolina are close to drastically cutting early voting and eliminating same-day registration. According to the Advancement Project, a Washington civil rights organization, "Eleven out of the 15 states covered by Section 5 enacted, or are pursuing, restrictive voting laws this year."
Judith Browne-Dianis, Advancement Project co-director, says voting rights groups have developed a four-pronged strategy to counteract the decision: challenge new voting restrictions through preliminary injunctions and Section 2 of the VRA (which applies nationwide, but puts the onus on plaintiffs to prove that a law is discriminatory after enactment); pressure Congress to reconstruct the VRA; draft a new coverage formula for Section 4; and mobilize indignant voters to make their voices heard, starting with the fiftieth anniversary of the March on Washington on August 28. "All of those pieces have to happen at the same time," she says.
On the night of the decision, the NAACP held a conference call with its 1,200 local chapters to prepare them for the tough fight ahead. A few days later, 18,000 people joined a conference call with a broad array of democratic reform and civil rights groups to discuss the post–Shelby County strategy. "We’ve got to move from outrage to action," says Jotaka Eaddy, senior director of voting rights at the NAACP. "It’s important that people know there’s an attack on voting rights. It’s even more important that people know they can do something about it."
The thorniest issue is what a revised Section 4 should look like, which Spencer Overton, professor of law at George Washington University Law School, calls a "political Rubik’s Cube." A consensus has not yet emerged. Overton believes the best fix is to cover states based on recent Section 2 and Section 5 violations in the past two to five years, and to more easily "bail in" states with bad records under Section 3 of the VRA. "We certainly want this to be appropriately tailored, recognizing that it will be challenged in the future," Overton says. He also thinks Congress should make jurisdictions disclose voting changes online to show they’re not discriminatory and bolster the ability of voting rights groups and the Justice Department to win preliminary injunctions.
It remains to be seen whether a Congress that can scarcely do more than name post offices is capable of rewriting the country’s most important civil rights law. The chairs of the Senate and House Judiciary committees have pledged to hold hearings soon, and prominent Republicans like James Sensenbrenner, Eric Cantor, and Chuck Grassley have expressed openness to a legislative fix. The GOP caucus is whiter, more conservative and more Southern than it was during the last reauthorization, although opposition to a new VRA could prove disastrous for a party now embarking, at least rhetorically, on a well-publicized "rebranding." Nancy Pelosi has suggested a name for the new law, after the man who nearly died marching in Selma for voting rights: the John Lewis Voting Rights Act [see Berman, "John Lewis’s Long Fight for Voting Rights," June 24/July 1].
The VRA decision could produce a significant backlash among minority voters, just as the voter suppression attempts of 2012 spurred black turnout, which surpassed white turnout for the first time in US history. In much the same way that the VRA’s passage in 1965 spurred counter-mobilization drives by the likes of George Wallace, which registered hundreds of thousands of conservative white voters in the 1960s, so too could the loss of Section 5 motivate a new wave of minority voting activism. "The election of 2012 put voting rights back on the map, because people saw the extent to which politicians would go to suppress the vote," says Browne-Dianis. "This decision is going to take it to the next level. People now get that it’s not only these state legislatures, but it's the courts that are rolling back voting rights. Many people feel like, 'It’s not going to happen on our watch.'"