John Lewis and others react to the Supreme Court’s Voting Rights Act ruling

June 25, 2013

JOHN LEWIS

Democratic representative from Georgia

The Supreme Court has stuck a dagger into the heart of the Voting Rights Act. Although the court did not deny that voter discrimination still exists, it gutted the most powerful tool this nation has ever had to stop discriminatory voting practices from becoming law. Those justices were never beaten or jailed for trying to register to vote. They have no friends who gave their lives for the right to vote. I want to say to them, Come and walk in my shoes.

I disagree that because the incidence of voter discrimination is not as “pervasive, widespread or rampant” as it was in 1965 that the contemporary problems are not a valid basis for scrutiny. In a democracy, one act of voter discrimination should be too much. It took nearly 100 years, from 1865 to 1965, for effective voting rights legislation to be passed. The advances of the Reconstruction period — when some freed slaves were elected to Congress — were erased in a few short years, and for decades this nation turned a blind eye to some of the worst and most brutal violations of human and civil rights.

Also, the purpose of the Voting Rights Act is not to increase the numbers of minority voters or elected officials. That is a byproduct of its effectiveness. The purpose of the act is to stop discriminatory practices from becoming law. There are more black elected officials in Mississippi today not because attempts to discriminate against voters ceased but because the Voting Rights Act kept those attempts from becoming law. Just hours after the court’s decision was announced Thursday, Texas said it would immediately implement the same voter ID law declared illegal by the Justice Department.

We do not want to go back. We must move forward. I think it is very encouraging that some members of Congress, both Democrats and Republicans, have indicated a willingness to fix this problem. Members of the Senate Judiciary Committee are already meeting. I call upon my colleagues to join in a bipartisan fashion as we did in 2006 and find a way to protect access to the ballot box for all Americans.

EDWARD BLUM

Visiting fellow at the American Enterprise Institute; author of “The Unintended Consequences of Section 5 of the Voting Rights Act”; director of the Project on Fair Representation, an Alexandria-based not-for-profit legal defense foundation that provided counsel to Shelby County

The Supreme Court’s decision to strike down Section 4 of the 1965 Voting Rights Act restores a fundamental constitutional order that America’s laws must apply uniformly to each state and jurisdiction. All 50 states are entitled to equal dignity and sovereignty under the law.

While the Voting Rights Act was “a triumph for freedom as huge as any victory that has ever been known on the battlefield,” as President Lyndon B. Johnson put it at the time of its adoption, the court’s decision Tuesday acknowledges that the South is an altogether different place than it was in 1965. The affected jurisdictions should no longer be punished by the federal government for conditions that existed more than 40 years ago. The ruling represents a recognition by the Court of the enormous improvements in minority electoral opportunities in the states covered by the law. It also underscores Congress’s failure to modernize the law in light of all these positive changes.

To clarify, the Supreme Court struck down Section 4 of the Voting Rights Act, the central tenet of which is a formula to determine which jurisdictions should be subject to the conditions of Section 5. That aspect of the legislation, which is still in effect and will be until 2031, requires that proposed voting changes in selected jurisdictions be pre-cleared by the U.S. attorney general or the U.S. District Court of the District of Columbia to ensure that the suggested changes have neither the purpose, nor the effect, of discrimination based on race or color.

In 2009, the Supreme Court gave Congress the opportunity in Northwest Austin Municipal Utility District Number One v. Holder to revise the provisions of the Voting Rights Act that had been reauthorized in 2006. Yet neither Congress nor the Obama administration acted.

African Americans and Hispanics routinely win elections in majority-white districts in Texas, Georgia, Alabama, South Carolina and other states. If Congress finds factual data showing that disenfranchisement of minorities is occurring in jurisdictions throughout the country, it can and should create new directives to deal with this injustice.

GREGORY B. CRAIG

White House counsel from January 2009 to January 2010

The full magnitude of the Supreme Court’s decision in Shelby County v. Holder has yet to be understood, but it is deeply troubling. The inevitable impact will be to weaken voters’ rights at a time when election-driven efforts to suppress those rights in certain populations — for partisan political gain — have increased exponentially. It will be more difficult to prevent states from discriminating against voters on the basis of race. State legislators will be encouraged to see what they can get away with, and race-based incidents of discrimination will increase.

This decision resurrects the discarded proposition that states’ rights are more important than individual rights and that federal efforts to protect citizens’ rights should defer to the sovereignty of the states. The struggle between states’ rights and individual rights — and the proper role of the federal government in that struggle — predates the Civil War. The issue has been deeply divisive and, on occasion, violent. I fear that the language in this decision — and its result — will reopen that wound. What was once a bipartisan consensus, achieved after many years of pain and struggle, is no longer. We can add voting rights to the list of polarizing issues that will divide Congress.

This decision is also an assault on Congress. The 14th and 15th Amendments explicitly entrust Congress — not the judiciary or the executive — with the power to protect Americans from being denied the right to vote “because of race, color or previous condition of servitude.” In her dissent, Justice Ruth Bader Ginsburg noted that “When confronting the most constitutionally invidious form of discrimination and the most fundamental right in our democratic system, Congress’s power to act is at its height.” But the court showed no deference, despite the fact that House Judiciary Committee Chairman Jim Sensenbrenner (R-Mich.) had said, when the Voting Rights Act of 2007 was passed, that his committee had engaged in “one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 27 ½ years” he had served in the House. The votes in Congress were not close: 98 to 0 in the Senate; 390 to 33 in the House. This is an example of the least democratic branch of government substituting its opinion for the most democratic branch — perhaps the single greatest example of legislating from the bench in my lifetime.

Now that the Supreme Court has closed down the pre-clearance process, enforcement of the Voting Rights Act will require the Justice Department to take individual cases to court. By any measure, the case-by-case approach will be long, arduous and unsatisfactory. An enormous commitment of new resources will be required to enforce the Voting Rights Act. It’s not likely to happen.

RICHARD H. PILDES

Professor at New York University School of Law

In the wake of the Supreme Court’s decision in Shelby County v. Holder, the first temptation of some will be to try to tweak the Voting Rights Act’s coverage formula to get an updated version through the eye of the court’s needle. Voting rights advocates should recognize that dramatically different models are available for protecting the right to vote.

The model embodied in Sections 4 and 5 was powerfully effective in its time but has inherent limitations today: It requires a law that can identify in advance which areas are likely to generate improper barriers to political participation. This was easy in 1965, given the history of literacy tests, poll taxes, etc. — and even in 1972, the last time Section 4’s coverage was updated — but is far more difficult now. Going forward, voting restrictions are likely to emerge where partisan competition is greatest and elections are expected to turn on small margins — and that will vary by election. In the 2012 presidential contest, Ohio, Pennsylvania, Nevada, Florida, Virginia or New Mexico might have been targeted. In 2016, it might be Wisconsin, Texas or Michigan.

Sections 4 and 5 were also designed to deal with changes to existing voting laws. Even if we could accurately predict the most troubled jurisdictions, staying within this model only gets at voting changes that have a racial purpose or effect.

An alternative would protect the right to vote in national and universal terms, as is the case of more recent legislation such as the Help America Vote Act and the National Voter Registration Act. Such laws would be designed to eliminate unnecessary and unjustifiable barriers to political participation in general. Legislation could require states to show that voting rules rest on legitimate purposes and are no more restrictive of access than necessary to serve those purposes. Congress has ample powers to enact such laws for national elections, and legislation of this sort need not be limited to changes in voting laws — barriers to voter registration, for example, remain a major problem — or to changes that involve racial discrimination. National laws of this sort might be the most effective way today to protect the rights of all voters, including minority voters.

CHARLES J. OGLETREE JR.

Professor at Harvard Law School; founding and executive director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School.

The decision in Shelby County v. Holder has my father, a native of Alabama, turning in his grave. The Voting Rights Act of 1965 made this critical right accessible to all citizens.

With its deeply misguided decision to invalidate the formula used to identify states and jurisdictions requiring pre-clearance approval, five justices have chosen to rip out what Rep. John Lewis has called the “heart and soul” of the Voting Rights Act. The result is a patient gasping for breath. In her dissent, Justice Ruth Bader Ginsburg summed up the illogic of this decision brilliantly: “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.”

This decision moves us backward at a time when voting rights are being threatened at a level we haven’t witnessed in decades — indeed, since before the Voting Rights Act was passed. Granted, those seeking to disenfranchise “undesirable” voters no longer use literacy tests. Their strategies are more sophisticated now, but their intent is all too familiar. As a rapidly growing number of states impose new restrictions on voting, we can see that voter suppression is alive and well. Consider, for example, the photo identification requirements that have passed in 20 state legislatures since 2003. Ostensibly designed to prevent in-person “voter fraud” (which research has shown is practically nonexistent), these laws make it harder for members of minority groups — youth, the poor, women, the elderly or anyone who does not possess a government-issued photo identification — to vote. Who are they kidding? All but one of these laws were passed by Republican legislatures and signed by Republican governors. A few legislators privately admitted the obvious: these laws are designed to keep certain voters away from the ballot box. To limit the long-term damage of this decision, Congress must move swiftly to update the legislation’s formula so that the heart of the Voting Rights Act can be restored.

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