Voting Rights Act of 1965

  • October 2, 2014
    Guest Post

    by Kareem U. Crayton, associate professor of law, the University of North Carolina School of Law

    Voting has been described by the Supreme Court as “preservative of other basic civil and political rights.” So when law and policy leave voting insecure, the core project of governance itself faces grave risk. 

    During oral arguments preceding the June 2013 decision to invalidate a key feature of the Voting Rights Act in Shelby County v. Holder, Justice Anthony Kennedy dismissed concerns that voting would become less secure for racial minorities. Even absent Section 5’s preclearance oversight for states with egregious histories of discrimination, Kennedy asserted, Section 2 of the law would allow citizens to use traditional litigation to block discriminatory laws. A year into the post-Shelby County era, we have initial evidence of how this litigation has fared in practice.

    One test of Section 2 is playing out in North Carolina, where this week the 4th Circuit Court of Appeals ruled in favor of the North Carolina NAACP and allied groups in their challenge of a state law that is widely recognized as the nation’s most restrictive. The Court’s decision ordered a preliminary injunction for two provisions of the law – the elimination of same-day registration, and the prohibition of out-of-precinct ballots from being counted. The decision means that these rules will not apply in the November election, contrary to an earlier decision by a U.S. District Court to deny this preliminary injunction. A full trial regarding the merits of the law will go to court next July.

    According to the 4th Circuit, “The district court got the law plainly wrong in several crucial respects" in assessing whether North Carolina’s measure, known as H.B. 589, was likely in violation of Section 2. They continued, "When the applicable law is properly understood and applied to the facts as the district court portrayed them, it becomes clear that the district court abused its discretion in denying plaintiffs a preliminary injunction and not preventing certain provisions of House Bill 589 from taking effect while the parties fight over the bill's legality."

    North Carolina’s H.B. 589 enacts multiple changes to the state’s election system. It eliminates same-day voter registration, prohibits out-of-precinct ballots from being counted, shortens the early voting period by a week, eliminates a successful pre-registration program for 16- and 17-year-olds, prohibits counties from extending Election Day poll hours to account extraordinary circumstances (such as long lines), permits poll observers to challenge voters, and implements a strict photo ID requirement.

  • August 6, 2014
    Guest Post

    by Estelle Rogers, Legislative Director, Project Vote

    *This piece originally appeared on Project Vote’s Voting Matters.

    Forty-ninth anniversaries don’t usually garner much attention, but today a 49th anniversary—though filled with pathos—is worth commemorating. The Voting Rights Act was signed into law by President Lyndon Johnson on August 6, 1964. Often called the “crown jewel” of the civil rights movement, the Voting Rights Act has now lost a bit of its luster, tarnished by the Supreme Court’s decision in Shelby County v. Holder.

    The passage of the Voting Rights Act took barely four months after the President sent the bill to Congress; he called it “one of the most monumental laws in the entire history of American freedom.” And it passed by overwhelming bipartisan majorities in both chambers, foreshadowing the four reauthorization votes that reaffirmed its vitality over the years since. The last, in 2006, passed by a vote of 98-0 in the Senate and 390-33 in the House. But no more.

    Since the Supreme Court eviscerated preclearance, one of the most important tools written into the VRA to fight racial discrimination, the law’s historical bipartisan support seems but a distant memory.  Preclearance requires states and smaller jurisdictions with particularly troubling histories of voting discrimination to secure federal approval in advance for any voting changes. The law swept broadly, recognizing that even seemingly trivial statutory or administrative changes often operate to disadvantage racial and language minorities. One of its most significant advantages was to mitigate the necessity to file expensive and time-consuming lawsuits to redress voting discrimination on a case-by-case basis. As part of the VRA, it was reauthorized four times. But no more.

  • July 2, 2014

    by Jeremy Leaming

    Today we commemorate the 50th Anniversary of the Civil Rights Act of 1964. Signed into law by President Lyndon Johnson on July 2, 1964, it was and remains a landmark step forward. But we must not also forget that 50 years on, African American communities and other minorities still face many of the same onerous, often deadly, obstacles to equality that generations of African Americans before them suffered. 

    The Civil Rights Act sought to fight discrimination against African Americans and others and to desegregate public schools.

    The Civil Rights Act would not have made it to the president’s desk, were it not for Dr. Martin Luther King, Jr. and many other African American leaders' bold courage and great suffering to win steps toward civil rights. But the suffering continues. Morris Dees at the Southern Poverty Law Center remembers the signing of the Civil Rights Act of 1964 50 years ago and notes where we stand today.

    Let's be honest about the state of African-American lives in this country. As Peniel E. Joseph points out in The Root, "the glass is not only half-empty, but it’s losing water fast." Joseph notes that assaults on affirmative action, lax enforcement of civil rights and anti-discrimination laws by federal and state governments and the white public’s general fatigue over race matters has created the perfect storm of political retrenchment we are seeing today. African Americans are still disproportionately imprisoned, put on death row and face racial-profiling from coast to coast. They still face vast discrimination at the polling place. Lawmakers pass discriminatory and unjust laws to keep black men and women from exercising their right to vote. That's why you are seeing stringent voter ID laws and the slashing of early voting. And our country relies on an oppressive system of mass incarceration that is disproportionately destroying African American families and communities. (See this ACSblog Book Talk by Michelle Alexander, associate professor of law at Ohio State University Moritz College of Law, about this system in her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness.)

    The African-American community and others who care for genuine equality and a more just and gentler society are continuing to fight. They have seen a conservative supreme court hobble the Voting Rights Act, but are working with a bipartisan group of lawmakers for passage of the Voting Rights Amendment Act. As The Nation editor Katrina Vanden Heuvel notes in a Washington Post editorial, ongoing action is needed, as Martin Luther King III recently said, we need "not just this moment of reflection, but also a year of action." 

    Today marks the 50th anniversary of the signing of the Civil Rights Act of 1964. This month also marks the 50th anniversary of Freedom Summer. During July, ACSblog will host a symposium commemorating the two anniversaries featuring some of the nation’s leading scholars and civil rights leaders.

  • 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.

  • 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.