This past weekend marked the 51st anniversary of the signing of the Voting Rights Act of 1965 prohibiting racial discrimination in voting and resulting in the mass enfranchisement of racial minorities throughout the country, especially in the South.
Signed into law by President Lyndon B. Johnson on August 6, 1965, the act was designed to enforce the voting rights guaranteed by the Fourteenth and Fifteenth Amendments to the United States Constitution. Enforcement of these amendments took its first shape with the Enforcement Acts passed by Congress in the 1870s, criminalizing obstruction of a citizen’s voting rights and provided for federal supervision of the electoral process, including voter registration. However, in 1875 the Supreme Court struck down parts of these acts, and by 1894 congress had repealed nearly all of their provisions. Southern states continued their push toward disenfranchisement, first by electoral fraud and violence during the period following the U.S. Civil War known as Reconstruction (1868-1888) and then by the enactment of legislation known commonly as Jim Crow Laws (1888-1908), which were state constitutional amendments and legislation, backed by Supreme Court decisions, imposing various voting restrictions, such as literacy tests, poll taxes, property-ownership requirements, and grandfather clauses, all of which were specifically structured to exclude African Americans from the voting franchise.
After increasing pressure from a growing civil rights movement, by 1965 Dr. Martin Luther King, Jr’s Southern Christian Leadership Conference (SCLC) had joined the group of citizens and activists in Selma, Alabama, to bring much needed visibility and impact to the issue of voter disenfranchisement. On February 4, President Johnson had signaled his support for SCLC and the Selma movement, and following the world’s viewing of the March 7, 1965, march, led by John Lewis, Amelia Boynton, Hosea Williams and others, where marchers, crossing Selma’s Edmund Pettus Bridge were met by county sheriff’s officers, state troopers, and citizen mobs who attacked them in a bloody and violent raid, the Voting Rights Act of 1965 was introduced in Congress (the U.S. Senate) on March 17, 1965, with final passage by both houses of Congress – the House of Representatives on August 3, 1965 (328-74), the Senate on August 4, 1965 (78-19) – and execution into law by President Johnson on August 6.
Among its provisions, the Act included Section 2, as amended in 1982, prohibiting any voting practice that has a discriminatory effect, irrespective of whether the practice was enacted or is administered for the purpose of discriminating; Section 4, as amended in 1970 and 1975, instituting a nationwide prohibition against the use of tests and devices for voting – Section 4(a) – and a coverage formula that brings jurisdictions into subjugation under Section 4(a) – Section 4(b); and Section 5, as amended in 1970, 1975, 1982 and 2006, requiring preclearance by jurisdictions subject to Section 4(b). It was Section 4(b) that many argued was the practical and operative guts of the Voting Rights Act, the enforcement of which helped greatly to ensure enfranchisement of historically discriminated populations in the U.S.
However, on February 27, 2013, the U.S. Supreme Court heard oral arguments in the Shelby County, Alabama v. Holder case arguing the constitutionality of Section 4(b) and Section 5 of the Act. And on June 25, 2013, in a 5-4 decision, the Supreme Court struck down Section 4(b) as unconstitutional, with Chief Justice John Roberts, in delivering the majority opinion – joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, reasoning that, among other things, the coverage formula conflicts with the constitutional principles of federalism and “equal sovereignty of the states” because the disparate treatment of the states is “based on 40 year-old facts having no logical relationship to the present day” and thus not responsive to current needs.
The impact of striking Section 4(b) rendered Section 5, the preclearance provision, practically inoperative.
Since the ruling, several states once covered under the preclearance provision, as well as some states not covered, proposed and enacted sweeping voter identification legislation, which also removed many provisions that had expanded means for voter registration. In addition, states have also more aggressively sought to expunge voters deemed ineligible from registration rolls.
The U.S. Department of Justice, civil rights groups and private interests have since challenged many states’ voter ID laws in the courts under other provisions of the Voting Rights Act and other acts and constitutional amendments. And, in the last two weeks we have seen a flurry of federal and state rulings that have rolled back major provisions of voter ID laws in no less than six states – Texas, North Carolina, Ohio, Wisconsin, North Dakota and Kansas.
In particular, one of the real-world critiques of the Shelby majority opinion regarding the relationship of historical facts of racial discrimination to present-day circumstances was found in the 4th U.S. Circuit Court of Appeals’ decision in a challenge to North Carolina’s voter ID law, HB. 589. On July 29, 2016, a unanimous three-judge panel reversed a trial court decision in a number of consolidated actions, finding that North Carolina’s new voting provisions targeted African Americans “with almost surgical precision” and that the legislators had acted with “discriminatory intent” in enacting strict election rules in order to counteract increased voter participation among communities of color.
The above example highlights the continued realities of racism in the voting franchise at the institutional level. And it further shows the ongoing, necessary work still to be done to confront and lay off these burdens of racism and injustice in realizing our best selves.
For, “injustice anywhere is a threat to justice everywhere.”1>
1. King, Jr., Martin Luther, “Letter from Birmingham Jail,” Birmingham, April 16, 1963
For more information on the Voting Rights Act see the “History of Federal Voting Rights Laws: The Voting Rights Act of 1965”. United States Department of Justice, “Voting Rights Act”. National Voting Rights Museum and Institute; the “Introduction to Federal Voting Rights Laws: The Effect of the Voting Rights Act”. U.S. Department of Justice. June 19, 2009; “About Section 5 of the Voting Rights Act”. U.S. Department of Justice. Retrieved April 21, 2014; and Gary May’s May, Gary Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy (Kindle ed.). New York, NY: Basic Books. ISBN 0-465-01846-7.
For more detailed treatments of the Selma to Montgomery marches see The King Papers at the Martin Luther King, Jr. Research and Education Institute at Stanford University Clayborne Carson, director; Taylor Branch, At Canaan’s Edge: America in the King Years 1965-1968 (Simon and Shuster, 2007); Andrew Young, An Easy Burden: The Civil Rights Movement and the Transformation of America, New York: HarperCollins, 1996; From Selma to Montgomery LBJ Presidential Library; Randall Kryn, “James L. Bevel The Strategist of the 1960s Civil Rights Movement,” In David Garrow’s 1989 book We Shall Overcome, Volume II, New York: Carlson Publishing Company, 1989; Randy Kryn, “Movement Revision Research Summary Regarding James Bevel”, October 2005, Middlebury College; Reed, Roy (March 6, 1966). “‘Bloody Sunday’ Was Year Ago”. The New York Times (New York, New York); Sheila Jackson Hardy; P. Stephen Hardy (August 11, 2008). Extraordinary People of the Civil Rights Movement. Paw Prints. p. 264. ISBN 978-1-4395-2357-5; Taylor Branch. The King Years: Historic Moments in the Civil Rights Movement. Simon & Schuster (2013); “Selma — Breaking the Grip of Fear” ~ Civil Rights Movement Veterans; Are You “Qualified” to Vote? The Alabama “Literacy Test” ~ Civil Rights Movement Veterans; “Edmundite Southern Missions”, Encyclopedia of Alabama; “Freedom Day in Selma” ~ Civil Rights Movement Veterans; Zinn, Howard (1965). SNCC The New Abolitionists. Beacon Press; “The Selma Injunction”, ~ Civil Rights Movement Veterans; Ari Berman, “Fifty Years After Bloody Sunday in Selma, Everything and Nothing Has Changed”, The Nation, 25 February 2015.
For an overview of the Shelby County v. Holder case see the LII Supreme Court Bulletin’s Shelby County v. Holder; the LII Supreme Court Bulletin’s Supreme Court Decision in Shelby County, Alabama v. Holder, Attorney General; https://en.wikipedia.org/wiki/Shelby_County_v._Holder.