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By all indications, the second civil rights era in American history will end this June. That is when the U.S. Supreme Court is expected to rule in Shelby County v. Holder that Section 5 of the Voting Rights Act (VRA) is unconstitutional. With that ruling, one of the most powerful and successful civil rights tools in American history will cease to exist. Its demise is part of the second great disenfranchisement that began after Florida 2000. The battle over civil rights and enfranchisement is a story of what the law can accomplish.
America’s history tells two stories. There is the United States represented by “We the people,” the first three words of the Constitution. A country that promises an inclusive democracy, liberty, and equality for everyone. But as former Supreme Court Justice Thurgood Marshall pointed out in 1987 speech commemorating the bicentennial of the Constitution, “We the people” excluded many. African-Americans were slaves, Native-Americans were three-fifths persons, and by the laws across the 13 states, women, the poor and many others were denied the right to vote and share equally in the promise of American democracy. For Marshall, it took a Civil War and numerous constitutional amendments to bring the ideal of “We the people” within the grasp of those excluded.
But the Reconstruction Congress after the Civil War represented the first major civil rights era. It included, as the recent movie Lincoln depicted, the 1865 adoption of the 13th Amendment that banned slavery. But this same Congress adopted the 14th Amendment in 1868 which aimed to guarantee, among other things, equal protection for all, and it also ratified in 1870 the Fifteenth Amendment, granting voting rights to former male slaves. This Reconstruction Congress passed a flurry of civil rights acts in 1866, 1870, 1871, and 1875, with the later three passed pursuant to the authority that the 14th and 15th Amendments gave to them to adopt appropriate legislation to enforce these amendments.
Reconstruction was successful. Across the South, African-Americans were elected to state houses and Congress. Yet slowly, the civil rights era ended. The presidential election between Republican Rutherford B. Hayes and Democrat Samuel Tilden in 1876 resulted in disputed electoral votes going to the former in return for federal troops being withdrawn from the South. Enforcement of Reconstruction laws ended and the Jim Crow era began as the states of the former Confederacy devised a host of ways to undermine civil and voting rights for African-Americans. The Supreme Court in the Slaughterhouse cases (1873) and the Civil Rights cases (1883) further dismantled the force of the three constitutional amendments and four civil rights laws, with the infamous 1896 Plessy v. Ferguson upholding “separate but equal” as a constitutional doctrine until overturned by the Supreme Court in 1954 in Brown v. Board of Education.
When it came to undermining the 15th Amendment, the right to vote, the South was crafty. It used literacy tests, poll taxes, grandfather clauses, and felon disenfranchisement laws as tools to deny franchise. If all else failed, the KKK simply burned crosses or murdered those who dared exercise their rights.
But maybe it was the 1954 Brown decision or perhaps it was in 1955 when Rosa Parks refused to go to the back of the bus that the second civil rights era began. As with the first civil rights era it was marked by constitutional amendments and legislation from Washington, including the 1965 Voting Rights Act. The VRA sought to restore and protect the voting rights that the Fifteenth Amendment promised, and one of the central features of the act was section 5. Section 5 required either the Justice Department or a Washington, D.C. federal district court to pre-clear any changes in voting procedures sought to be made by the 22 jurisdictions covered by section 4 of the act. Essentially Section 5 covered most of what was part of the Confederacy. Exactly what practices were covered by Section 5 was not specified, but as Chief Justice Earl Warren declared in the 1969 Allen v. State Board of Elections decision which upheld Section 5, the VRA “aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of race.”
The power of pre-clearance resides in the concepts of presumption and burden of proof. The law is full of both. When accused of a crime, there is a presumption of innocence and the government carries the burden to show guilt beyond a reasonable doubt. Civil trials hinge on the plaintiff demonstrating by a preponderance of evidence that the defendant was liable. Laws affecting constitutional rights are presumptively suspect unless the government can demonstrate a compelling interest for their validity. Section 5 works the same way. Changes to voting procedures are presumed invalid unless a covered jurisdiction can show why they should be allowed. Such a presumption in nearly 50 years has invalidated hundreds if not thousands of laws that would have hurt voting rights.
The result, as told by Chandler Davidson and Bernard Grofman in The Quiet Revolution in the South, is that the VRA has been monumentally successful in enhancing voting rights. The original 1965 Act and its reauthorizations in 1970, 1975, 1982, and 2007 have dramatically expanded minority voter registration, turnout, and election of candidates across the South. But that success is part of its problem. There are now many who claim that Section 5 pre-clearance is no longer needed. We have a black president, minority registration and voting that equals or in some cases exceeds that of whites. The South has been punished enough and it can now be trusted with minority voting rights. This at least is part of the argument by Shelby County before the Supreme Court in last month.
Constitutionally, the Shelby County, Alabama argument is that Congress’s 15th Amendment enforcement is outweighed by state’s rights under the 10th Amendment. Congress, in reauthorizing the VRA in 2007, used outdated data to support Section 5 and therefore the pre-clearance requirements are disproportionate to authority the federal government has to enforce this act.
Oral arguments suggested that the Supreme Court is prepared to strike the law down by a 5-4 vote, with the five Republican-appointed justices forming the majority, leaving the four Democrat-appointed ones in dissent. This will be yet another partisan 5-4 decision in recent years that will further erode the legitimacy of the Supreme Court, making it appear that it is ideology and not the law driving its decisions.
Shelby County will be part of the second great disenfranchisement in American history. It needs to viewed in context of another Supreme Court decision this term likely to end affirmative action, and also within a partisan battle over voting rights and fraud. Since Florida 2000 there has been a barrage of legislation across the country to require voter photo identification at the polls in order to abate voter fraud. The truth is that study after study consistently documents that one has a better chance of being struck by lightning that showing that in-person voter fraud is a serious factor affecting the outcome of elections.
The lesson to be learned from the VRA and perhaps Shelby County is that the law matters. It may not always change hearts and minds but it can alter how institutions operate or as here, enable or discourage individuals from voting.
Author: David Schultz is a professor in the school of business at Hamline University. He can be reached at [email protected]