Ever since the federal judiciary took a turn toward the right beginning with appointments to the bench by President Ronald Reagan, the fear among civil rights groups was that the Voting Rights Act would be emasculated. Paranoia did not fuel that fear but rather a real sense that conservatives would seek to undo the landmark law passed at the height of Jim Crow during the administration of President Lyndon B. Johnson. The assault on affirmative action served as a warning shot that voting rights were next in the right’s line of fire. Multiple cases that challenged redistricted congressional and state legislative seats and questions of oversight of so-called “covered” jurisdictions under Section 5 of the Act wound their way through lower courts, heading to the Supreme Court. While the Act has been preserved over the years, there is no question that its opponents have been whittling away, hoping to eventually have it struck down.
It is important to remember the origins of the Voting Rights Act. Though signed into law by President Johnson in 1965, the Act is rooted in decades of discriminatory practices that preceded congressional action. Despite the 15th Amendment, Blacks were routinely denied their right to vote and nowhere was this more prevalent than in southern states that adhered to Jim Crow. These practices included the imposition of poll taxes, the infamous grandfather clause and literacy tests that made it virtually impossible for Blacks to register to vote. When those prohibitions did not work or did not temper the demands of Blacks for the right to vote, violence was the tool of choice by the white power structure in southern states. The image of bloodied civil rights protesters on the Edmund Pettus Bridge attempting to march from Selma to Montgomery in 1965 embodies the struggle for Black voting rights.
Section 5 of the Voting Rights Act serves to prevent states from changing the rules of the game to disfranchise minority voters. At the time of the Act’s signing, it was clear that southern states would not simply comply with the law. That lesson of southern resistance was learned in the aftermath of the Supreme Court’s historic decision in 1954 in Brown v. Board of Education. To prevent states from doing things like changing polling sites, registration guidelines and voting district lines, Section 5 was included to require jurisdictions to seek “pre-clearance” from the Department of Justice before any such changes were implemented. This provision applies to southern states with a history of voter discrimination and intimidation, and three New York boroughs with a large population of language minorities.
In its ruling, the Supreme Court determined that those rules should not apply to a small Texas utility district but did not waive Section 5 enforcement more broadly. It was a close call but a win nonetheless for voting rights advocates and Black and Latino voters. No doubt, the issue is not dead as new cases that challenge Section 5 will wind through the courts and may eventually land in front of the Supreme Court. The provision remains intact for now and will continue to be a valuable tool to hold states accountable for fair voting practices in the administration of elections.
On a final note, we must call attention to the Court’s lone Black justice, Clarence Thomas. While his conservative views are no secret, the venom he displays towards laws that are designed to remedy discrimination and create equity in society remains perplexing. Justice Thomas once again went out of his way to trash a civil rights statute, just as he opposes affirmative action despite him being a beneficiary of the policy meant to level the playing field in higher education and employment. Thomas outdid himself this time in referencing a Reconstruction case that involved the overturning of the conviction of three white men who terrorized Blacks in Louisiana who were exercising their right to vote to support his claim that the Voting Rights Act violates states’ rights. Justice Thomas has once again revealed himself to be wrong on the law and ignorant of the historical circumstances that have made these laws necessary in the first place. Justice Thomas has become not just an embarrassment but also an obstructionist to justice.