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Honor Justice Ginsburg by defending voting rights

She issued a prescient dissent in a 2013 case gutting the Voting Rights Act.

An image of Ruth Bader Ginsburg is nailed to a pole as protesters gather outside Senate Majority Leader Mitch McConnell's home to oppose his plan to immediately vote on a replacement for the late Supreme Court justice. (Lawrence Bryant/Reuters)

I try not to cry, especially in professional settings. But on June 25, 2013, I failed. There were, I confess, tears in my eyes as I sat in the Supreme Court as a young law clerk to Justice Stephen G. Breyer as the court announced that it had neutered key provisions of the Voting Rights Act. The only salvation on that bleak day for civil rights was the words of Justice Ruth Bader Ginsburg.

By a 5-to-4 majority, the Supreme Court had struck down as unconstitutional a central provision of the landmark law passed in 1965: It declared that the mostly Southern parts of the country that had been forced to clear in advance, with the Justice Department or a federal court, changes to election practices and procedures — because of their histories of discriminating against Black voters — no longer had to do so. This powerful antidote to discrimination, the majority opinion written by Chief Justice John G. Roberts Jr. essentially said, had become outdated in its application, and it was no longer fair to subject these parts of the country to such scrutiny.

It was a crushing decision. The Voting Rights Act was the product of the hopes, dreams and blood of those who’d fought for civil rights in the 1960s — and for decades of activists before them. To see Congress’s work — and, importantly, the people’s work­ — so cavalierly tossed aside was devastating. The regressive enormity of it all overwhelmed me.

Yet there was someone who — possessed of a small voice but also of a huge heart and formidable intellect — urged Americans to keep fighting. Ginsburg wrote the dissent that day, and, in a rare move reserved for the moments of greatest disagreement, delivered a version of her opinion aloud from the bench.

She told a historical story that demolished the majority opinion’s description of the preclearance requirement and its application as relics of the past. In her version, the fight against vote suppression after the Civil War had led to the Constitution’s Reconstruction Amendments, which ultimately failed to deliver fully on their promise. That failure spawned, in the 1960s, a mass movement to renew the push for voting equality. The result was the Voting Rights Act, which barred the most egregious forms of racial discrimination — yet its work remained unfinished, in Ginsburg’s telling. She explained how “second-generation barriers” to voting had arisen — including racial gerrymandering and at-large voting arrangements designed to dilute minority voters’ influence. The law had been reauthorized repeatedly by Congress to shield against continuing attempts to thwart Americans’ constitutionally protected right to vote. The justice laid out, in exquisite detail, how Congress had considered these pernicious and persistent efforts before reauthorizing — most recently in 2006 — a law whose key provision five justices now concluded was unconstitutional.

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Ginsburg wrote, in particular, about Bloody Sunday — when Alabama state troopers brutally beat peaceful demonstrators, led by the late John Lewis, marching from Selma to Montgomery — and about how, in the aftermath of that clash, the Rev. Martin Luther King Jr. led the historic second march from Selma to Montgomery, where he called for passage of the very law that the Supreme Court was now gutting. Then she quoted King’s immortal words: “The arc of the moral universe is long, but it bends toward justice.”

It would have been easy to stop there — natural, even. A more conventional thinker would have left us with the observation that, as dark a day as the court’s decision made for, the overall trend toward justice would resume.

But Justice Ginsburg had more to say. She reminded us that King hadn’t simply called for a law whose demise was now upon us. Instead, he’d made clear that, as she put it, “there had to be a steadfast national commitment to see the task through to completion.” “History,” she wrote, “has proved King right.”

Indeed, it had — and it has. Here we are, in 2020, 55 years after the Voting Rights Act’s passage and seven years after a majority of the Supreme Court “terminate[d] the remedy that proved to be best suited to block … discrimination,” as Justice Ginsburg put it. In the absence of that remedy, “vote suppression” — better called voter suppression, because it’s about human beings being blocked from democratic participation — has resurged with a vengeance.

The forms it takes are myriad. There are voter ID laws. There are purges of voter rolls. There are polling station closures and relocations away from vulnerable communities — precisely the types of changes that, in jurisdictions covered by the Voting Rights Act, had required federal approval. And we’re now seeing novel ways of suppressing votes this election cycle, with President Trump and his attorney general waging rhetorical war on mail-in ballots, despite an utter lack of evidence to back up their claims that mail-in voting somehow yields fraud. In forms new and old, the danger of which Ginsburg warned us persists: The urge for some Americans to keep others from having democratic voice.

The current crisis should remind us of Ginsburg’s call to arms: There must be a steadfast national commitment to see through to completion the task of protecting voting rights. Ginsburg embodied that commitment: She did her part. But, as she would have been the first to note, it’s a mistake to expect the Supreme Court — especially any one member, no matter how revered — to protect the citizenry against a concerted assault on the right to vote. As in the 1960s, such an effort requires political mobilization at all levels, and in all forms: public advocacy, new legislation and visionary leadership. Presidents shape the Supreme Court, so electing one who is committed to ensuring that all Americans can vote is paramount. But so is electing state governors and representatives as well as mayors and city council members who commit to expanding the franchise, not restricting it. We need activists who will monitor the situation at polling sites to document interference. And we need to press the case that the cause of voting rights shouldn’t be partisan. The fight between the political parties shouldn’t be about who gets to vote but rather for whom to vote.

Voting rights advocates have lost a relentless ally with Ginsburg’s passing. But she left behind the inspiration and direction to continue the fight. It’s now on us — we the people — to complete the task.