Next week marks the third anniversary of an incredibly consequential U.S. Supreme Court decision that struck down key provisions of landmark civil rights legislation. The high court’s 5-4 ruling in Shelby County vs. Holder meant that Alabama and many other southern states no longer had to seek federal approval to change their election laws under the Voting Rights Act.
But what happened, and how we got there, is so much more complicated. To really understand the narrative arc of the 1965 Voting Rights Act, you have to go back 100 years to the end of the Civil War and the three so-called “Reconstruction Amendments” to the U.S. Constitution. The 13th, 14th and 15th Amendments outlawed slavery, established citizenship for blacks, and gave them the right to vote.
“For nearly a century, the U.S. government had done very little to defend voting rights under the 15th Amendment, and you fall into a long, deep period of disenfranchisement,” University of Oklahoma political scientist Keith Gaddie told KGOU’s Oklahoma Voices. “By 1910, across the South – including Oklahoma – you have a variety of different acts, state actions, put into place that keep blacks out of the polling place and the last black officeholder has been driven from politics.”
Gaddie chronicled minorities' struggle for suffrage in his 2016 book with Justin Wert and Charles Bullock, The Rise and Fall of the Voting Rights Act.
There was no federal statute to enforce voting rights until 1957. Blacks that did try to register to vote faced poll taxes, literacy or educational competence tests, and even violence. Georgia had the highest rate of black voter registration in the Deep South by 1960, but even then, only 1 in 4 blacks eligible to vote registered.
“In 1946, a black man voted in the gubernatorial election in Georgia and was shot dead in the streets in Spaulding County,” Gaddie said.
Validating Voting Rights
President Lyndon Johnson wanted to make civil rights a central pillar of his legacy, and already cemented his place in history with the 1964 Civil Rights Act. A year later, the “Bloody Sunday” attack at the Edmund Pettus Bridge in Selma, Alabama prompted him to go a step further, and put together “an act with teeth.”
“He asked his attorney general, Nick Katzenbach, for ‘the goddamndest, toughest voting rights law’ he could write,” Gaddie said. “What made it different was it gave the national government the authority to basically freeze in place all election laws and practices in states where you had really low voter participation.”
That forced the states to show that they did not discriminate on the basis of race if they wanted to make any changes to election laws. Section 4(b) establishes a coverage formula that affected most of the Deep South, and Section 5 created this idea of “preclearance” – the provision that states wanting to change their election laws had to seek approval from the federal government.
Even though Gaddie described the Voting Rights Act as an “implementation success,” enforcement was still a reactive process. The Department of Justice would rarely move unless a person or a group brought a complaint or a lawsuit against a state or county. Most of the problems came during the redrawing of Congressional and legislative districts, with Texas having more violations than any other state. By 2008, African-American turnout had surpassed white voter turnout, according to Gaddie. Georgia and Mississippi actually saw record levels of black elected officials due to the creation of opportunities to win in districts where they could be successful.
"The downside is that African-Americans and Hispanics [are] almost entirely Democrats when elected office. And these are all states that have gone decidedly to the Republican Party in terms of their majority,” Gaddie said. “So you have a situation where African-American Latino representatives are usually part of a minority party rump inside a white Republican-dominated legislature. So there's a limited impact they can have on substantive policy in their states."
In the 1990s, Texas businessman Edward Blum started funding research and litigation to prove certain districts had been gerrymandered to create black and Hispanic minority-majority districts. During the 2005 and 2006 renewal process for the Voting Rights Act, Gaddie testified before both the U.S. House and Senate Judiciary committees, and he argued that the current coverage formula contained a legal vulnerability because the coverage formula for preclearance may violate the Equal Protection Clause of the 14th Amendment.
Blum found a test case to challenge Sections 4 and 5 - what became known as NAMUDNO vs. Holder. The case centered around the North Austin Municipal Utility District Number 1 (NAMUDNO) northwest of the Texas capital. An election board governed the district, and like the rest of Texas was covered by the Voting Rights Act. But the district never had any history of discrimination and wanted to apply for an exemption under a different portion of Section 4. The Supreme Court agreed with them, but declined to rule on the constitutionality of Section 4’s coverage formula.
That would come later. In 2013, Shelby County, Alabama directly challenged the constitutionality of Section 4, and the high court ruled in Shelby County vs. Holder that it violated the Equal Protection Clause because the coverage formula was outdated. That effectively meant that Section 5, the preclearance requirement, was now unenforceable.
“If you think about a gun, a gun has got a bullet, a trigger, a hammer, and a firing pin. The trigger provision of the Voting Rights Act is Section 4, which indicates whether or not you're covered. By throwing out the formula for Section 4, they left the trigger in place but they took out the firing pin, which means that there's no way to get a bullet out of the gun on preclearance,” Gaddie said. “And in one stroke in June 2013, what happens is 16 states and several thousands jurisdictions that had been undergoing close scrutiny under the Voting Rights Act are suddenly free. And within hours they're passing legislation that had been clogged up in pre clearance on things like photo ID and redistricting that was being litigated at the time under Section 5.”
So what does that mean, if nearly 50 years of Voting Rights Act precedent has been suddenly cast aside? The Shelby County decision represents what Gaddie describes as a Roberts Court doctrine of “equal state sovereignty” – that every state should be treated the same, no matter their history. It’s the very antithesis of the Voting Rights Act, which came about because states were treating citizens in an unequal fashion. Gaddie says, in theory, this idea could be used to roll back more than 100 years of federal legislation designed to extend the reach of the national government to compel compliance by the states.
“This thing has got tremendous legs,” Gaddie said. “You could use it on equal employment law. You could use it on the Civil Rights Act of 1964 in terms of those interstate commerce protections that are extended to guarantee access to public facilities and access public establishments.”
Gaddie says for women and minorities, latent discriminatory practices in the economic community or by local governments could be used against them, with little redress outside of state courts. That means defending civil rights could become a case-by-case basis with a higher standard of proof that Constitutional rights have been violated, rather than a Congressional statute.
“We have to protect everybody at the same time, and there's only one institution that can do that, and that's the national government,” Gaddie said.
David Ransom contributed to this story.
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