by Elise C. Boddie, Associate Professor of Law, Rutgers University-Newark; former director of litigation NAACP Legal Defense & Education Fund, Inc.; and a member of the ACS Board of Directors.
One of the many indelible images of the civil rights era is a black and white picture of an African-American boy, maybe nine or ten years old, holding a poster in front of the Dallas County courthouse in Selma, Alabama. The year is 1964. The boy’s small hands are clutched around the edges of his poster, which in plain, scrawled lettering, calls for people to register to vote in the name of “freedom.” We cannot see his eyes because they are averted from the camera. Instead, he has fixed his gaze on a group of policemen who are about to descend upon him and, as we later learn, arrest him just after the picture is taken.
The picture is a reminder that the right to vote is more literally secure than it was in Selma in 1964. Less than a year later, Selma would emerge as the birthplace of the 1965 Voting Rights Act, following a march from Selma to Montgomery, led by Dr. Martin Luther King, Jr. and a host of civil rights leaders, including now-Congressman John Lewis. An earlier attempted march to Montgomery led demonstrators over the Edmund Pettus Bridge, where they were beaten mercilessly by Alabama state troopers before having to turn back, all in full view of the national press. The horror and disgrace of that moment helped catalyze national support and the political will to pass voting rights legislation.
We rightly celebrate and honor Dr. King as the “drum major for justice” who helped bring that fight to fruition, along with the countless, nameless thousands – the young Selma boy among them – who laid their bodies on the line so that future generations could exercise their constitutional rights. The police no longer beat African Americans in the street for trying to register; and literacy tests, which barred so many Blacks, Latinos, and other people of color from voting, no longer exist as a result of the 1965 Act. The frontal indignities of Jim Crow at least are gone.
And yet, like a weed with roots deep beneath the surface, other practices soon emerged in their place, including at-large voting schemes, racially-discriminatory annexations and redistricting plans that sought to “crack” or “pack” minority voters in order to dilute their voting strength. Evidence of this adaptive discrimination carries through to the present. For example, following the record turnout of voters of color for Obama in the 2008 and 2012 presidential elections states enacted restrictive laws that made it harder to vote.
Against a record of “unremitting and ingenious defiance of the Constitution,” Congress included in the Voting Rights Act a core provision that limited the authority of states with “the most aggravated records of rank discrimination against minority voting rights” to unilaterally change their voting practices. This “preclearance” provision, known as Section 5, required covered jurisdictions with certain indicia of low voter participation to secure federal approval of any proposed voting changes by demonstrating that they would not disfranchise minority voters. In a landmark case, South Carolina v. Katzenbach, the Supreme Court upheld the Act against a constitutional challenge, as it would in later cases brought by jurisdictions that sought to evade the statutory protections for minority voters. In 2013, however, the Supreme Court gutted Section 5 in Shelby County v. Holder, striking down a companion provision that established the scope of Section 5’s geographic coverage. While acknowledging that voting discrimination persists,  the Court concluded that the coverage provision no longer reflected the most “current” manifestations of such discrimination. In light of “dramatic” improvements in the landscape of voter suppression, the Act’s incursion on the “equal sovereignty” of the states was no longer justified.
After Shelby, fifteen states enacted laws that discouraged voter participation. Although the precise impact of these laws is hard to determine, voters of color appear to have been disproportionately affected in at least five states – Texas, Alabama, North Carolina, Virginia, and Georgia, each of which had been covered by the Act’s preclearance provision before Shelby and each of which had also experienced a significant increase in the population of voters of color. Thus, in a time of burgeoning “minority” voting power, states have actively sought to limit accessibility to the polls. The timing, of course, is hardly coincidental, but rather – as a Texas federal district court judge concluded with respect to that state’s photo identification law – appears calculated to suppress minority turnout.