The Voting Rights Act: A continued march toward progress

A few blocks from the U.S. Supreme Court is the National Archives, housing original signed copies of the Constitution, the Declaration of Independence and landmark pieces of federal legislation – including the Voting Rights Act of 1965. In front of the entrance to the Archives stand two statues with inscriptions that read “What is Past is Prologue,” and “Study the Past.” We hope all nine justices of the Supreme Court will heed that wisdom as they hear arguments this week about the constitutionality of a key provision of the Voting Rights Act.  

The Voting Rights Act is one of the most consequential civil rights laws in American history. It is as relevant today as it was when President Johnson stood alongside Rosa Parks and Dr. Martin Luther King, Jr. to sign this historic bill into law. The Voting Rights Act has played a central role in preventing and addressing threats to millions of citizens’ right to vote. It consistently has been upheld by the United States Supreme Court against constitutional challenges, and Congress has reauthorized its special provisions, including the Section 5 preclearance provision, by wide bipartisan margins four times in the last 48 years. Most recently, Congress reauthorized the Act’s provisions in 2006 by a unanimous vote of 98-0 in the Senate and 390-33 in the House.
 
Section 5 is one of the key components of the law. It stops voting discrimination before it can be implemented, requiring jurisdictions with a history of voter discrimination to submit their proposed voting changes for federal review. Section 5 applies to all or parts of 16 states, including most states in the South, as well as Alaska, Arizona and parts of South Dakota, Michigan, California and New York.
 
Over the years, thousands of discriminatory changes have been blocked or deterred by Section 5. Nonetheless, the Supreme Court will hear arguments Wednesday in a constitutional challenge that asks the Court instead to strike down all Section 5 protections.
 
In a 2009 case that also challenged the constitutionality of Section 5, the Supreme Court’s opinion noted that “things have changed in the South,” and that “blatantly discriminatory evasions of federal decrees are rare.” But in declining to decide the constitutional claim, the Court further noted “[i]t may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act.” We can all agree that things have improved since the Voting Rights Act banned literacy tests and other devices used to discriminate in registering people to vote, but both Congress and the Supreme Court recognized decades ago that voting discrimination morphs into many forms. There was indisputable evidence before Congress in 2006 that racial voting discrimination remained a serious ongoing problem, and there is undeniable evidence that it continues today. And as the Supreme Court has held, the basic purpose of Section 5 was “to banish the blight of racial discrimination in voting,” not simply to ameliorate it.    
 
Although the tactics have changed, the threat of disfranchisement remains. Just last year, Section 5 prevented multiple laws from taking effect that would have disfranchised minority citizens. Texas was blocked from using redistricting plans for Congress and the State Senate because a three-judge federal court determined that they were adopted with a racially discriminatory purpose. In Florida, where the data showed that African Americans use early voting significantly more than whites, the State was prevented from needlessly reducing the number of early voting hours in counties covered by Section 5. And South Carolina was forced to modify its government-issued photo voter identification law so that voters would not be prevented from voting because they could not obtain a specific form of identification.
 
These examples – just three among many in recent years – are proof positive that Section 5 of the Voting Rights Act remains a necessary remedy to ensure that the right to vote is not denied or abridged on account of race.
 
The world’s leading democracy must go beyond honoring the fundamental right to vote in principle; we must also protect its practice. So it is fitting that the Voting Rights Act is housed in the same building as the Constitution and the Declaration of Independence – because the Act makes the principles outlined in those great documents attainable. 
 
Arnwine, is the president and executive director of the Lawyers’ Committee for Civil Rights Under Law. Murphy is the director of the ACLU’s Washington Legislative Office.

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