We’re not satisfied yet

 By Ruth Greenwood and Marissa Liebling

When signing the Voting Rights Act (VRA) into law in 1965, President Johnson said: "Until every qualified person regardless of . . . the color of his skin has the right, unquestioned and unrestrained, to go in and cast his ballot in every precinct in this great land of ours, I am not going to be satisfied." The Supreme Court case of Shelby County v Holder reminds us that we are still waiting for that satisfaction.

In deciding Shelby County v. Holder, the Supreme Court is considering whether Section 5 of the VRA is constitutional. A key question that during oral arguments was vocalized by Chief Justice John Roberts: “[I]s it the government’s submission that the citizens in the South are more racist than citizens in the North?”  While the answer to that question is still under review by political scientists, one thing is certain: it is not only the South that needs the general protections of the VRA.

Section 5 of the VRA requires certain states and jurisdictions with particularly egregious histories of voting discrimination to submit their proposed election law changes to the Department of Justice (DOJ) or a federal district court for approval before enactment.  The so-called “covered jurisdictions” are largely southern states like Alabama and Mississippi.  Section 5 was included in the 1965 VRA to respond to the “ingenious defiance” to the Fifteenth Amendment evidenced by covered jurisdictions.  It was thought this defiance could be better combatted by pre-approval of laws than by a tedious and costly case-by-case approach after passage of the laws.

History has judged the VRA to be one of the most effective civil rights laws enacted by Congress, and section 5’s operation has been a large part of its success.  Section 5 places the burden of ensuring covered jurisdictions do not deny or abridge the right to vote on account of race or color on the states themselves, with the DOJ or federal court merely reviewing the laws, rather than engaging in costly litigation over them.  The shifting of this burden has allowed civil rights organizations to focus on advocacy and litigation to protect voting rights across the country, rather than being swamped by litigation in covered jurisdictions.

Controversially, Justice Scalia, during the Shelby County oral argument, explained that he believed that the Senate overwhelmingly (98-0) supported the reauthorization of Section 5 in 2006 because it reflects a “racial entitlement.”  He has received significant backlash for this comment, and rightfully so.  The right to vote is not a racial entitlement; it is an entitlement of citizenship.  In a democracy that right is, as Congressman John Lewis has said, “almost sacred.”

Justice Scalia went on to opine on the VRA: “[e]ven the name of it is wonderful.”  Well, yes, it is, actually. And why is that? Because it speaks to a wonderful concept: protecting the voting rights of all American citizens by fulfilling the ideal enshrined in the Fifteenth Amendment that “the right of citizens of the United States to vote shall not be denied or abridged…on account of race [or] color.”

However, while the justices’ comments deserve attention, there are two more important issues in play.  First we must recognize the undeniable history of racially motivated restrictions on the right to vote by covered jurisdictions, and therefore appreciate the ongoing need for Section 5.  Second, we must acknowledge that the recent wave of politically motivated voting rights restrictions (promoted in both covered and non-covered jurisdictions) have a disparate impact on minority voters.  Though racism persists in this country, so too does the historical disadvantage of minority citizens.  The protections of the VRA are needed to prevent laws that limit the right to vote of minority voters, whether in the South or the North, and whether by intent or effect.

Politically motivated restrictions have been prevalent across the Midwest in recent years, from restrictions on early voting in Ohio, the attempted imposition of photo ID requirements in Wisconsin and Michigan, to the alleged voter intimidation evidenced recently in Cicero, Illinois.  Even if these policies and practices are applied in a racially-neutral manner, their effect is almost always to disproportionately burden minority voters.

President Obama, in his election night speech, and again in his 2013 inaugural address, lamented how long it takes to vote in many parts of the country.  Commentators were quick to point out that it is African American and Hispanic voters that bear the brunt of these burdens.  Long lines to the voting booth result from a perfect storm of restrictive election laws, mismanaged voter rolls, election judges without sufficient training, diminishing county election budgets, outdated technology, and insufficient public education on the voting process.  The severity of each type of problem varies by state across the Midwest, but all must make improvements if we are to realize the right to vote for all citizens regardless of race, color or socioeconomic status.

The good news is that, with the protections of the VRA, the federal Constitution, and state constitutions and the hard work of civil rights groups across the Midwest, we are fighting back.  In 2012 litigation led to a photo ID law in Wisconsin being struck down, early voting restrictions in Ohio being rolled back, the attempted purge of alleged non-citizens from the Iowa voter rolls in the weeks before the 2012 election being halted, and provisional ballots cast in the wrong precinct in Ohio being counted.

The civil rights community will continue to push for modernization of election administration through policies like online voter registration, electronic poll books, and same day voter registration.  And, we will continue to fight back against policies that put up roadblocks to the right to vote, such as restrictions on voter registration, early voting, and identification requirements at the polls.

We firmly believe that Section 5 is still vital to protecting the rights of minority voters.  But we also recognize that it is not only in the South that minority voters face threats to their right to vote.  Until we are satisfied that every citizen in our nation has equal access to the ballot box, the VRA will remain one of the most important tools in the civil rights armory.