by Gilda R. Daniels, Associate Professor at the University of Baltimore School of Law and former Deputy Chief of the United States Department of Justice, Voting Section. This post is part of an ACSblog symposium on Shelby County v. Holder.
It would certainly be ironic if Alabama, the state that gave us the Voting Rights Act in 1965 because of its opposition to providing African American citizens the ability to register and vote, would also serve as the state that would end a key part of the Act. It could happen. It shouldn’t, if the Supreme Court recognizes the significance of ensuring that history does not repeat itself.
On February 27, the United States Supreme Court will hear Shelby County, Alabama v. Holder, a challenge to Section 5 of the Voting Rights Act. The Voting Rights Acthas two primary provisions: Section 2 is permanent and prohibits race discrimination in voting and Section 5, which is one of the temporary provisions, requires periodic Congressional reauthorization. What Section 5 does is very important. It is both prophylactic and preventative and requires “covered jurisdictions” to “preclear” voting changes before they can implement them. These changes can range from a redistricting to the mundane moving of a polling place across the street. Regardless, the VRA requires the jurisdiction to submit the change to either the Attorney General of the United States or the United States District Court for the District of Columbia for approval prior to implementation. Alabama is one of the originally covered Section 5 jurisdictions.
In March 1965, more than 600 marchers embarked on a journey to walk from Selma to Montgomery, Alabama to spotlight the belligerence and entrenchment of voting disenfranchisement for African Americans. On Sunday, March 7, the marchers barely reached the Edmund Pettus Bridge before law enforcement officials beat and tear gassed the young people and children who bravely attempted the march. After “Bloody Sunday,” Congress passed the Voting Rights Act of 1965 to address the widespread state sponsored shenanigans surrounding the right to vote, such as, poll taxes, literacy tests, closure of registration sites, acts and threats of violence surrounding voter registration and participation that remained rampant throughout much of the country, especially in the South. President Lyndon B. Johnson proclaimed the Voting Rights Act of 1965, “one of the most monumental laws in the entirehistory of American freedom.” In August 1965, less than five months after the Edmund Pettus incident, he signed the Voting Rights Act.
Many of the outlawed acts of the past have comparable companions in this new millennium, e.g., poll taxes are akin to voter id, literacy tests are similar to proof of citizenship laws. These “new millennium methods” may not have the same violent nature as Governor Wallace standing in the school house door or Bull Connor refusing to register African American citizens to vote, but the denials and the impediments to voter registration and voter participation are very much the same in intent and impact. Section 5 serves as a valuable prophylactic to thwart and deter discriminatory voting practices.
Opponents to Section 5 argue that the Act treats states differently and it infringes on the state’s right to govern. This argument is an echo from latter days and essentially proclaims that the federal government should leave jurisdictions to themselves and not interfere with laws that it makes, like voter id and proof of citizenship laws that impact the right to vote. These claims are strikingly similar to a darker time in America’s history. In the 1960s, Alabama Governor George Wallace declared “Segregation now, segregation tomorrow and segregation forever” he later explained that he should have said, “state’s rights now, state’s rights tomorrow, state’s rights forever.” Contemporaneously, current Texas Governor Rick Perry proclaimed that a Section 5 objection to its voter id law served as “a clear violation of the 10th Amendment” and the state’s “right to make sovereign decisions.”
States, however, do not have the Tenth Amendment right to disenfranchise its eligible citizens. The federal government has the power to constitutionally protect the right to vote though its Fourteenth and Fifteenth Amendments of the US Constitution. The protection that Section 5 provides is very important in continuing the progress that has been celebrated over the past fifty years. Moreover, one needs only to be reminded that this nation, during the period of Reconstruction, shortly after the Civil War, removed protective measures to ensure free and fair access to the ballot box at a time of great progress only to allow the complete abandonment of the federal government and the return of widespread violence and disenfranchisement. Today, Section 5 covered jurisdictions are demonstrating their willingness to listen to the echoes of the past and make it harder for a select group of its citizens to register and vote with the passage of restrictive voting laws that if left unchallenged and preemptively reviewed could lead us to days long ago where minority electoral progress and advancement would become a thing of the past. Hopefully, the Supreme Court will not allow history to repeat itself.