Atiba R. Ellis

  • August 26, 2013
    Guest Post

    by Atiba R. Ellis, Associate Professor, West Virginia University College of Law. This post is part of an ACSblog symposium on the 50th Anniversary of the March on Washington for Jobs and Freedom.

    The March on Washington for Jobs and Freedom represented the high point of the decades-long civil rights movement against Jim Crow apartheid. The March brought heightened international attention to African Americans’ demands for social, political, and economic justice.  And the March offered a snapshot of the battle to awaken the moral imagination of the country. Indeed, the progress achieved in the 1960s battle for civil, political, and economic rights could not have been made without first winning the battle for the moral imagination of the United States. 

    The movement made apparent the injustices of Jim Crow. The movement called white America’s attention to the terrorism of lynching and bombings. The movement forced Americans to consider the effects of segregated facilities. The movement demanded equal participation for African Americans in the political process. The “I Have A Dream” speech spoke for many in the movement by setting out specifically the moral question of civil rights for African Americans to the country.

    Dr. King sought not just to evoke the question, but also to show the necessity of answering the question immediately. He said that “[w]e . . . come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy.”  Yet, the question we must confront in 2013 is whether we have been tranquilized into the lethargy of gradualism concerning the work that needs to be done. 

    Fifty years ago, because of the public shaming of nonviolent protest, the majority society of 1963 could no longer ignore the tyranny of American apartheid. As a result, Congress passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965.  We can rightfully rejoice in the fact that America today cannot be called an “apartheid” country. But the majority society of 2013 seems to have forsaken the Civil Rights Movement’s call to moral imagination. Instead, many in society seem to have fallen victim to a new kind of gradualism.

  • June 27, 2013
    Guest Post

    by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law

    In  Shelby County, AL v. Holder, the Supreme Court, in a 5-4 decision split on ideological lines, declared unconstitutional the formula used under the Voting Rights Act of 1965 to determine which states and localities must receive pre-approval of their voting rights laws. This decision, which effectively ends the preclearance practice meant to preserve minority voting rights, will transform the right to vote for years to come. Once again, relying on the myth of racial progress, the Supreme Court failed to confront the racial balkanization in voting that exists, and it ultimately crippled the role that Voting Rights Act has in limiting it.

    This lawsuit was brought by Shelby County, Ala. This county, along with the rest of Alabama, as well as Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia, Alaska, Arizona, and parts of seven other states (known as the “covered jurisdictions”) was required under Section Five of the Voting Rights Act to have any change in their election laws approved (or “precleared”) by the U.S. Department of Justice. The covered jurisdictions were selected for the preclearance requirement according to a formula set out in Section Four of the act. The formula considered the jurisdiction’s past history of voting rights violations, current violations, white and minority voting rates, and other factors.  Shelby County argued that both Section Five’s preclearance requirement and Section Four’s coverage formula were unconstitutional. The Court struck down the Section Four formula.

    Chief Justice Roberts' opinion for the five-justice conservative majority relied on two premises. First, the opinion stated that each state is due “equal sovereignty,” that is each state has power to regulate matters left to the states, including voting, to the same extent as other states. As innocuous as that might sound, consider Roberts’s second premise:  “the conditions that originally justified [the preclearance measures that justified differing treatment of states] no longer characterize voting in the covered jurisdictions.” Slip op. at 2.  Roberts pointed to substantial progress in voter participation and the increase in minority elected officials in the time from the passage of the act until now.  Id. at 13-15. Yet, Roberts continued, the current coverage formula does not reflect this reality.  “Coverage today is based on decades-old data and eradicated practices.”  Slip op. at 18.  “Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.”  Id. 

  • March 7, 2013
    Guest Post

    by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law

    In my earlier guest blog on Shelby County, AL v. Holder, I suggested that the conservative justices of the Supreme Court would be tempted to offer a post-racialist narrative concerning the pre-clearance provisions of the Voting Rights Act. 

    The justices did not disappoint. Justice Anthony Kennedy asked whether Alabama should remain “under the trusteeship of the United States government.” Chief Justice John Roberts asked whether “the citizens in the South are more racist than the citizens in the North.” Both of these comments implicitly ask whether the long history of race has been atoned for once and for all.

    And then there was Justice Antonin Scalia’s statement on the Voting Rights Act. In explaining the almost unanimous consensus for the 2006 reauthorization of Section 5, Scalia said:

    Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

    On one level, this quote fits the post-racial narrative. Yet Justice Scalia intended a deeper message by invoking the rhetoric of “racial entitlement.” That message is the ahistorical belief that race-conscious analysis is immoral and leads to corrupt outcomes. Establishing this concept is part of a larger post-racial agenda (as we have seen already in the affirmative action debates), and the Voting Rights Act is the latest battleground. Yet, if applied to the right to vote, it will fly in the face of the plain text of the Constitution and our democratic consensus to insure equality in voting.

  • February 25, 2013
    Guest Post

    by Atiba R. Ellis, Associate Professor, West Virginia University College of Law. This post is part of an ACSblog symposium on Shelby County v. Holder.

    In Shelby County v. Holder, the opponents of Section 5 of the Voting Rights Actargue that this provision acts as a bludgeon that crushes the ability of the covered jurisdictions to legislate freely concerning the electoral process. The premise of this argument is that the America – and especially the jurisdictions covered by Section 5 – has triumphed over the problem of race. The voter suppression that existed in 1965 no longer exists.  An America that can elect an African-American president no longer needs to micromanage the election processes of certain states and localities on the basis of race. The opponents’ claim is that we live in a post-racial world, and a Congress that fails to recognize this has overstepped its constitutional role. 

    These two premises – that race is a relic of the past and that Congress has overreached its power to manage the electoral process – are false.

    Yet it is appealing to believe that we as a country have triumphed over the problem of race. This narrative tempts all of us, liberals and conservatives, to move on to other problems and feel good about ourselves. For the political right, if race is no longer a problem, then the ridicule conservatives suffer because they are typecast as being “bad on race” is no longer valid. For the political left, the triumph over race represents the realization of the liberal vision of racial harmony. The end effect is that once we believe this view, we avoid race discussions and eschew race-conscious remedies despite the facts.