BAYHAM: The US Supreme Court and the Voting Rights Act of 1965

Many outrageously inaccurate things have been said regarding the nation’s highest court’s recent ruling on the Voting Rights Act of 1965.

The key matter in the decision had nothing to do with curtailing voting rights (which are protected by various amendments to the US Constitution and cannot be tossed by any court) but whether certain states and communities would continue being treated differently from the rest of the nation concerning the administration of elections, ranging from the system by which individuals are elected to public office to reapportionment.

These designated areas required permission, or “preclearance”, before any changes to election laws or procedures could be adopted, a default recognition that some states were “less equal” than others.
So what did the court’s majority rule?

That one section out of the Voting Rights Act of 1965’s nineteen was unconstitutional.

The part that was struck down, Section 4, created a formula to determine which states would need to seek preclearance on their election laws.

The majority concluded that while those areas may have warranted additional scrutiny at the time of the VRA’s adoption for their failure to observe the 15th amendment, which prevents states from creating laws prohibiting individuals the right to vote based upon “race, color, or previous condition of servitude”, such restrictions have long since been removed and thus it was no longer necessary to single out particular states and communities to have their election procedures blessed by Washington.

The original formula for coverage when the landmark law included states that had maintained a test or a device as a qualification for voting as of November 1, 1964 and had less than a 50% voter participation or registration in that year’s presidential contest.

Virginia, Louisiana, Mississippi, South Carolina, Georgia and Alabama plus several dozen counties of North Carolina and a single Arizona county fell under Section 4 and thus they were required to receive preclearance on election procedures (Section 5). The scope of Section 4 was expanded when Congress reauthorized the VRA in 1970 and 1975, which is how areas in the northeast and the west became lumped in with southern states.

When Congress reauthorized the VRA in 1982 and 2006, they did not change the original formula or the amended coverage.

In their ruling on Tuesday, the majority of the court felt that the “frozen” formula was stale, imposing requirements on states that were now unnecessary and burdensome and unjustly applied, as the devious state laws that had been crafted by segregationists to suppress black participation in politics, such as literacy tests, understanding qualifications, poll taxes and grandfather clauses went extinct forty years ago if not longer.

The majority also pointed to the fact that black voters turned out at a higher rate than white voters in five of the six five states originally covered in the Voting Rights Act of 1965. When considering the conditions that existed in these states back in the sixties, it has been apparent for many, many years that black voters in the covered areas enjoy the same legal access to participate as voters of any other race.

Congress should have recognized these changes long ago and made practical amendments during the last two reauthorizations but chose not to act for less than honorable reasons.

Democrats lacked the integrity to address provisions that were clearly anachronistic burdens on particular states and counties for Machiavellian reasons that have become all too apparent in their reaction to the ruling.
Republicans lacked the courage and political will to do what was proper, fearful that even the slightest relaxation of the federal preclearance regulations would invite charges of racism and voter suppression conspiracies.

Thus seven states in the American south and a handful of other states and numerous communities spent decades caught in web of quasi-Reconstruction, needing approval of the Department of Justice in Washington in order to move a single voting precinct or remap school board districts.

When the Voting Rights Act of 1965 was passed, institutional obstructions to minority participation had been in place for generations and it was deemed necessary at that time to adopt measures that in their application infringed upon the 10th amendment (the rights of states) in order to uphold the 15th amendment (the rights of citizens).

As “good character” devices and other provisions designed to allow registrars to arbitrarily block people from participating in elections have been long eradicated, there was no longer a compelling or sound legal reason for the federal government to impose “special rules” on certain states and communities.

By a 5-4 majority, the United States Supreme Court did not “re-write the law” nor did they weaken anyone’s civil liberties. The 15th, 19th, 24th and 26th amendments related to voting rights are still there and remain the law of the land, impervious to any attempt by a state or local government unit to circumvent them.

Americans should look at the court’s ruling as a milestone marking the progress American society has made since the sixties. Those who chose the exploit the ruling to advance their political demagoguery are either ignorant of history or blind to reality.



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