Gains in Voting Rights Are Fragile; Congress Has a Duty to Preserve Them

February 7, 2013

by Jeremy Leaming

The opponents of the landmark Voting Rights Act have argued for years now that it is outdated – racial discrimination in voting is not really a problem, a thing of the past – and an unconstitutional infringement on state sovereignty.

And the opponents have come close to convincing the U.S. Supreme Court to agree with them. In 2009 the conservative wing of the Supreme Court in Northwest Austin Municipal Utility District Number One v. Holder did not gut the VRA, but strongly hinted it may be inclined to weaken or ditch the VRA’s major enforcement provision, Section 5.

Now opponents, this time from a largely white county in Alabama, are back gunning to greatly hinder if not scuttle the VRA, specifically by weakening or scrapping Section 5. That section requires certain states and localities with long histories of discriminating against voters because of race to obtain “preclearance” of proposed changes to their voting procedures from a federal court or the Department of Justice. During the 2012 elections the Department of Justice employed Section 5 to successfully shut down actions aimed at suppressing the votes of minorities. On Feb. 27, the Supreme Court will hear oral argument in Shelby County v. Holder, offering the court another chance to strike or greatly weaken Section 5. (See ACS’s Voting Rights Resources page for more detail about the VRA and the Shelby County case.)

The NAACP Legal Defense & Educational Fund, representing some Alabama voters, argue that in 2006 Congress justifiably reauthorized Section 5 for another 25 years, creating a voluminous record that revealed, among other things, that racial discrimination in voting is no relic. A bipartisan group of House Judiciary lawmakers who helped advance the 2006 reauthorization has lodged an amicus or friend-of-the-court brief with the Supreme Court urging it to show deference to the legislative branch and keep Section 5 viable.

As The Atlantic’s Andrew Cohen notes, there are a “remarkable” number of amicus briefs for the justices to wade through, and he highlights several of them, including one filed by the Brennan Center for Justice.

The Brennan Center, long a defender of the VRA, also lodged a brief in the 2009 case. The group’s Shelby County brief provides the backdrop for Congress’s work to enfranchise formerly enslaved black Americans, the tenuous nature of protecting the right to vote for minorities, and the continued need for Congress to use appropriate tools, like preclearance of the VRA, to ensure that the right to vote is not trampled by powerful and corrupt interests bent on keeping African Americans and other minorities away from the polls. A resounding message to the justices, from the Brennan Center’s brief, is that great strides forward are often met with great resistance and that those accomplishments advancing equality can be rolled back.   


Congress’s effort to enact the Fifteenth Amendment barring the states from forever denying blacks the right to vote and providing Congress the “power to enforce this article by appropriate legislation” was met with massive and deadly violence before and after its ratification. It would take new Congresses to realize that great effort and much work would be needed to ensure that African Americans could participate in democracy.

The Brennan Center brief notes, “By codifying a prohibition on racial discrimination in voting as part of the Constitution, the Framers of the Fifteenth Amendment thus singled out the right to vote as a uniquely important right. With the Fifteenth Amendment, Congress enshrined the right to vote as a centerpiece of Reconstruction and as a foundational constitutional guarantee of racial equality. By creating a nationwide ban on racial discrimination in voting and providing Congress a new source of power to enforce the right, the provisions of the Fifteenth Amendment were designed to ensure that recent against in enfranchisement would be doubly protected both from attempts to undermine the formal promise of racial equality in voting through more invidious methods.”

The Fifteenth Amendment, the brief continues, “vested Congress with primary authority for enforcing the new constitutional guarantee against racial discrimination in voting, and with wide remedial powers to achieve that goal. Based upon its experience with prior efforts to enfranchise blacks in the District of Columbia, federal territories, and former Confederate states, Congress knew that the Fifteenth Amendment would require a vigorous enforcement mechanism.”

It would take further action, such as the enactment of the Civil Rights Act of 1965, for the promise of the Fifteenth Amendment to begin to be realized. And after the 2012 elections, where numerous states sought to enact measures to suppress the votes of minorities, it is evident that Section 5 of the VRA has hardly run its course.

As the Brennan Center’s brief, in conclusion, states:

History shows that restricting Congress’s Fifteenth Amendment power would pose significant risks, and that gains in voting rights are fragile and tenuous. The Framers of the Fifteenth Amendment ‘fully realized that enfranchisement required practical safeguards against evasions of the law and retrogression.’ One of the central lessons of the Reconstruction Era is that ‘revolutions and advances in popular rights and democratic rights can be reversed; that history can move backward; that enormous gains can be lost and jeopardized, eroded, or diluted, and abridged in spite of the enormous cost that those advances have made.’