‘Dagger in the heart’ of the Voting Rights Act

In the 50 years since the Rev. Dr. Martin Luther King Jr. articulated the dream of a generation, this nation has seen inspiring progress toward the ideal of equality under the law. 

Nowhere has this progress been more dramatic than in the arena of voting rights. The passage of the Voting Rights Act of 1965 heralded an era of political opportunity for African-Americans not seen since Reconstruction. Black voter registration more than doubled in most states in the South after passage of the act and the number of African-Americans in Congress has increased from five in 1967 to 44 today.

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The centerpiece of the Voting Rights Act was the Section 5 “preclearance” provision, which required certain jurisdictions with a history of voting discrimination to obtain advanced approval from the Justice Department or a three-judge panel before implementing voting changes. Section 5 was critical to addressing incremental discriminatory changes in voting procedures that would have stymied progress toward equal voting rights. 

At the local level, Section 5 was especially important in leveling the playing field by shifting notice requirements and the burden of proof to jurisdictions with a history of discrimination, rather than relying on traditional litigation which would have taken years to root out patterns of discrimination in voting. More than any other provision, Section 5 can be credited with the sustained progress to voting equality.

The Supreme Court in its 5-4 Shelby County v. Holder decision earlier this summer has suspended implementation of the Section 5 preclearance program by invalidating the formula used to designate covered jurisdictions. This decision has the potential to seriously undermine the nation’s progress toward equal voting rights by allowing discriminatory voting measures to evade streamlined review and requiring minority voters to engage in costly litigation.

As a staunch proponent, and one of two remaining members of Congress who voted for the act in 1965, I was saddened when the Supreme Court substituted its own judgment for Congress’s in striking down the preclearance formula. The Shelby County decision, as renowned civil rights leader Rep. John Lewis (D-Ga.) stated, “plunged a dagger in the heart” of our civil rights laws. The significance of this court decision cannot be understated. Resulting from a watershed moment in American history, the act is itself beyond party politics and requires this Congress to take a serious look at the reasoning expressed by both the court’s majority and dissenting opinions to find a path forward. 

Historians would remind us that the passage of the Voting Rights Act resulted from a confluence of events. In the wake of widespread voting protests and marches in the South, President Lyndon B. Johnson proposed, and Congress passed, the act on a strong bipartisan basis after the nation witnessed the violent resistance to progress on Bloody Sunday at the Edmund Pettus Bridge in Selma, Ala. Many who voted for the law did so at the risk of their political careers. In the following 1966 election, as predicted by Johnson, there was a major shift in seats away from the Democratic Party, and many supporters lost their seats.

While the Supreme Court’s five-member majority focused on changes in the politics of covered jurisdictions to justify its decision, the dissent more closely tracked congressional authority and factual findings. Despite improvements in voter registration and turnout, Congress has repeatedly found the need for the preclearance requirement to continue, which is why it has been reauthorized on a bipartisan basis on four occasions, most recently in 2006. This most recent authorization, for an additional 25 years, was based on an exhaustive 15,000-page record compiled by the House and Senate Judiciary committees from more than 20 hearings at which 96 witnesses testified. The 2006 reauthorization law passed by the largest bipartisan vote in the act’s history, with the House voting 390-33 and the Senate voting unanimously, 98-0, before being signed into law by President George W. Bush. 

In the face of a divided Supreme Court, this Congress faces the challenge reconstituting its supermajority from 2006 and crafting a response that will surely invite legal scrutiny. I believe that we are up to the task, already having held hearings and engaging in serious bipartisan discussions. With several jurisdictions quickly reenacting provisions that were the subject of Section 5 objections, the cost of delay are clear. Just as Congress ignored political headwinds and set partisan differences aside five decades ago to prohibit discriminatory voting practices, this Congress must again muster the political courage to enact legislation to protect the voting rights of all Americans.

Conyers represents Michigan’s 14th Congressional District and is in his 24th term, making him the second-most senior House member. He sits on the Judiciary Committee.