August 7, 2015
Private: Racial Majoritarian Tyranny and the Voting Rights Act of 1965
Symposium: The Voting Rights Act at 50, Voting Rights Act, VRA
by Atiba R. Ellis, Professor of Law, West Virginia University College of Law. Twitter: @atibaellis
*This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.
The cornerstone of our democratic republic is the right to vote. The vote allows “We the People” ultimate say over government. The vote allows “We the People” to reject big-money-funded misinformation, the erosion of fundamental rights, and the degradation of public policy. As the Supreme Court has said for over a century, the right to vote is the most fundamental political right because it is “preservative of all other rights.”
To be effective at these (admittedly lofty) goals, we also have to recognize that the diversity of our electorate matters. For government to be legitimate, all citizens should be able to participate. Arbitrary bars to political participation raise questions of the validity of representative bodies. History has shown that in the absence of broad enfranchisement, government only acts for the unrepresentative majority. That majority can (and does) marginalize the minority when it comes to the minority’s status as equal citizens. This describes the majoritarian racial domination that defined the Jim Crow era of the nineteenth and twentieth centuries. The Voting Rights Act of 1965 (the “VRA”), which we celebrate in this symposium, is the Constitution’s weapon against this racial domination.
This state of racial domination had its roots in Reconstruction. The Reconstruction-era Congress, as I note here, sought specifically to protect the vote of freed slaves. The Republican majority in Congress of the late 1860s feared that terrorist tactics and legalized mischief would dissuade African Americans (an important Republican voting bloc) from the franchise. This Congress passed, and the states ratified, the Fifteenth Amendment that constitutionalized the idea of a right to vote free of racial discrimination.
But the Reconstruction Congress’s fears came true in the century that followed. Even with the Fifteenth Amendment, our constitutional structure nonetheless relies heavily on states to define and administer the qualifications for voting. The Jim Crow period was created by a the southern states betraying the Fifteenth Amendment through race-neutral yet nonetheless disempowering tactics like poll taxes and literacy tests that crushed black political power.
Thus, by the time the VRA was passed in 1965 to address these concerns, the democratic legitimacy of the United States was openly questioned. Two Americas existed—a white male America with full civil and political power and a black America where two-thirds of African Americans had been discouraged, dissuaded, and terrorized out of the vote.
The VRA attacked this majoritarian racial domination through broad litigation tools. Section 2 banned state voting practices that either expressly discriminated or had the disparate impact of racial discrimination. Section 5 provided that the states that had a history of and legacy of racial disenfranchisement would be required to submit voting law changes for “preclearance” (i.e., pre-approval before the changes became effective) by the Department of Justice or a federal court. These provisions provided necessary content to the promise of racial discrimination-free voting, and the data demonstrate how minority political participation improved in light of the VRA.
Yet, in 2015, new tactics—often referred to as second-generation voter suppression—have emerged to disincentivize, if not outright intimidate, voters of color today. In an era where America is becoming more diverse, a new species of racial majoritarian tyranny is also emerging, and with it a renewed need for the VRA to address it.
As we have recently seen, the Fifth Circuit declared the Texas strict voter identification law violated the VRA. The voter ID law had a discriminatory disparate impact on minority voters, as substantial numbers of poor blacks and Latinos did not own the few forms of identification the law allows. The Texas litigation is a victory, though as some commentators noted (here and here), a limited one.
Yet, as I have observed, the ability of the VRA to prevent this majoritarian racial domination has been crippled. The Texas litigation illustrates the point: Had the Court not rendered Section 5 ineffective in Shelby County v. Holder, Texas would have had to seek approval from the DOJ for its law or sue to have the law validated before the law went into effect. Yet, in the real world, the 2014 Texas election took place with the discriminatory voter ID law in place. The enforcement of the Texas law presumably harmed poor blacks and Latinos through dissuasive effects. All this happened because of a weakened VRA. This stands in stark contrast to the narrative of sufficient racial progress Chief Justice John Roberts relied upon to undo the VRA.
We must acknowledge the continued necessity of the VRA, but in its crippled form, the harm of minority dissuasion from voting can escape review until it’s too late. The problem of majoritarian racial domination in the new guise of creating entry barriers to voting for poor minority voters continues to exist, and the current VRA is insufficient to reach it.
In the long run, as William H. Frey of the Brookings Institution points out, these discriminatory laws may be overwhelmed by the ultimate diversification of America. I believe, however, that the diversification of America will in fact create perverse incentives for discriminatory laws in the America of the future as now-majority politicians seek to retain power as they find themselves in a future minority or plurality. Every other era of American history has suggested this.
To address both the present and future harms to the bulwark of democracy, Congress must reinvent the Voting Rights Act with provisions that revive DOJ’s ability to root out quickly legislative “innovations” that in practice create patterns of discrimination. I have noted on this blog a number of advocacy groups’ proposals to address this. But in our present reality, a perpetually delayed modernized Voting Rights Act results in justice denied for the millions vulnerable to the impact of voter identification laws and other arguably discriminatory election administration laws. Preventing a third century of racial majoritarian tyranny from casting a shadow over American democracy deserves no less.