Witnessing the End of the Voting Rights Act

Sierra Nelson
J.D. Candidate 2015, UCI Law

“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” – Justice Ruth Bader Ginsberg, dissenting opinion in Shelby Cnty., Ala. v. Holder, 133 S. Ct. 2612, 2650 (2013).

Shortly after Memorial Day 2013, I began my summer working on the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law (LCCR) in Washington, D.C. The LCCR had intervened in the case of Shelby County v. Holder on behalf of Bobby Lee Harris. Mr. Harris was a former city council member in Alabaster, Alabama, located in Shelby County, who had almost lost his seat in a historically African American district. Bobby Lee Harris was interviewed and stated that “[i]f it hadn’t been for Section 5, I would have been off the council in 2000.” See http://www.washingtonspectator.org/index.php/Bobby-Lee-Harris.html#.UlRhHWSG3Bs for more details.

In the month before the Supreme Court handed down the decision, everyone in the office was positive and optimistic. We did not believe there was any way that the Supreme Court would kill the most successful civil rights law in our Nation’s history. My supervisor had dedicated almost a year to building the congressional record used when the Voting Rights Act was renewed in 2006. The National Commission on the Voting Rights Act concluded that  “[t]he evidence demonstrates unfortunately that the persistence, degree, geographic breadth, and methods of voting discrimination are substantial and ongoing.  The voting discrimination that Congress intended to eliminate by enacting and reauthorizing the Voting Rights Act has held steady.  The temporary provisions of the Act, in fact, have prevented and remedied such discrimination.  They continue to do so today.” See Protecting Minority Rights: A Report by the National Commission on the Voting Rights Act, February 2006. The Senate unanimously renewed the Voting Rights Act in 2006.

In my office, all of the twenty-plus interns sat in one area called Intern Alley. When the final weeks of the Supreme Court’s term were upon us, we would all watch SCOTUSblog’s live stream every Monday, Wednesday, and Friday. Interns for the Education Project eagerly anticipated the decision in Fisher; everyone was awaiting the decision in Windsor and Hollingsworth.

Finally, on June 25th, Lyle reported that we had a decision in Shelby County.  There was brief confusion, then yelling, then tears. One intern had to take a copy of the opinion by taxi to our director who was making a speech on the steps of the Supreme Court with civil rights leaders. Another intern proclaimed, “well, it’s not that bad! They only took away the coverage formula; Section 5 is still intact.” However, it was that bad. Section 5 was essentially gone and the most substantial portion of the Voting Rights Act had met its death.

Chief Justice Roberts famously proclaimed “[t]hings have changed in the South” in the precursor to Shelby County,  Northwest Austin Municipal Utility District Number One v. Holder, 557 U.S. 193 (2009). I was born and raised in North Carolina and I can completely agree that things have changed. My parents both attended segregated schools and lived through the Civil Rights movement. I did not grow up through either of these things. However, I will never accept the Chief Justice’s naïve position that just because racism is not as ugly and prominent as it once was, it is not still persistent and that safeguards are not necessary. Attitudes are difficult to change and institutional racism is everywhere. Just because society has deemed explicit racism wrong does not mean that individuals and institutions do not still harness discriminatory viewpoints and intent.

The Voting Rights Act of 1965 was the most successful civil rights law in our nation’s history. In 1961, the state of Alabama had almost no African American voters. Thirteen counties, two of which had a majority African American population, contained no registered African American voters. By the end of 1966, only 4 out of the 13 southern states had fewer than 50 percent of African Americans registered to vote. There were millions of newly registered African Americans in the country.

Has the South changed? In 1992, in the city of Greensboro, Alabama, the first African American candidates ever were on the ballot. State Senator Bobby Singleton described how whites in the community were “holding the doors, closing the doors on African American voters before the voting hours were over.” He was jailed for opening the door and allowing individuals to come in and legally vote. Id. at 62-63.

Professor Hasen has discussed how the Chief Justice’s opinion in Shelby County puts forth an air of false minimalism because his opinion was so brief and neutral. He does not strike down Section 5, which allows for preclearance, but instead strikes down the formula in Section 4 that determined which jurisdictions were subject to preclearance. He then emphasizes that Congress can simply develop and pass a new coverage formula. That certainly seems reasonable, especially considering the government is currently shut down. I will miss you and never forget you, Section 4(b) of the Voting Rights Act.