The Challenge to Voting Rights
Freedom Summer and the March on Washington were shining achievements of the civil rights movement, but the Voting Rights Act is arguably the movement’s crown jewel. In 1965, President Lyndon Johnson signed the act to stop racial discrimination from limiting individuals’ access to voting, saying, “This act flows from a clear and simple wrong. Its only purpose is to right that wrong.” November’s midterm elections will be the first since the Supreme Court curtailed the Voting Rights Act in 2013, and many people wonder if that clear and simple wrong has actually been righted. Alumnus Luis Fuentes-Rohwer (’90, J.D. ’97, Ph.D. ’01) is one of them.
Fuentes-Rohwer, a professor of law and Harry T. Ice Faculty Fellow at Indiana University’s Maurer School of Law, studies the intersection between race and democracy, and, in particular, the Voting Rights Act. “To be sure,” he says, “we have made much progress. But I don’t think we are quite ready to discard federal voting protections yet.”
The Voting Rights Act: Before and After
In 1870, the 15th Amendment gave African American men the right to vote. (All women got the right to vote in 1920.) But state and local governments—particularly in the Confederacy—spent much of the following century trying to prevent them from using it. African Americans who tried to vote might be told they had the wrong day or the wrong polling place. They were assessed poll taxes or even told they had to recite the works of Henry Wadsworth Longfellow before they could cast a ballot. The discriminatory tactics were broad and varied, but the Voting Rights Act made them all illegal.
In an echo of earlier civil rights marches, activists held pro-voting rights placards outside of the U.S. Supreme Court in February 2013 as the court prepared to hearShelby County v. Holder. Photos by Mandel Ngan/Getty Images.
The Justice Department estimates that in the Voting Rights Act’s first five years, “almost as many blacks registered to vote in Alabama, Mississippi, Georgia, Louisiana, North Carolina, and South Carolina as in the entire preceding century before 1965.” The act included numerous general provisions, along with special provisions that applied only to problem regions. However, to understand the effects of the way the Supreme Court changed the law in 2013, Fuentes-Rohwer says, we should note two aspects of the act in particular.
First, the act included a “coverage formula” that determined which regions would be covered by the act’s special provisions. The formula initially covered many states of the old Confederacy and select counties in North Carolina, because these were areas where racial discrimination was rampant. “This was no mere coincidence,” says Fuentes-Rohwer. “Though the formula was neutral on its face and had nationwide applicability, it was designed to target precisely these jurisdictions.”
Second, the areas covered by this formula had to “preclear” any changes related to voting before those changes could become law. “This was a way to stay one step ahead of changes intended to deny otherwise eligible voters the right to vote,” says Fuentes-Rohwer.
Getting into the Act
The act’s coverage formula was intended to last for only five years, but each time the special provision was due to expire, Congress elected to reauthorize it. In 2006, Congress reauthorized it for another 25 years.
Along the way, Congress expanded the act by adding English-only election materials to its definition of illegal “tests and devices” in regions where a significant portion of citizens primarily spoke a language other than English. Congress also made it easier for jurisdictions with a history of voter suppression that had mended their ways to be released from the law’s preclearance requirement.
Shelby County, Alabama, objected to both the coverage formula and the preclearance aspects of the law and challenged them in Shelby County v. Holder. In 2013, the Supreme Court ruled that the coverage formula was outdated because African American voter turnout rivaled or exceeded white voter turnout in these regions; in other words, because the desired outcome of the law had been achieved, the court struck the coverage formula down.
The court left the preclearance requirement exactly as it was, but because the court had eliminated the law’s enforced coverage formula, no jurisdictions were covered. The preclearance requirement remained a rule, but it was a rule that applied to no one.
And that, when it comes to elections, is concerning to Fuentes-Rohwer. “The future of voting rights is grim,” he says.
States that historically couldn’t be trusted to hold fair elections can now require voter ID laws, cut voting hours, purge voter rolls, or end same-day voter registration. “And many of them have done precisely that,” he continues, “from Texas and North Carolina to Florida, Alabama, Virginia, and Mississippi.”
Whether voter ID laws or local redistricting efforts will disenfranchise eligible voters remains to be seen. “There is no question, though, that the court adds a distinct voice to this debate,” says Fuentes-Rohwer. “But the court is not the final voice, nor should it be. Shelby Countyshould be the beginning of a conversation about where the country is and where it is going. The court is forcing us to answer old and settled questions. In the short term, the ball is in Congress’s court. But in the long term, it is up to the citizenry to decide what kind of country they want to live in.
“This is where we find ourselves today,” he concludes. “After Shelby County, grassroots activism must play a central role in restoring the protections we lost. If history teaches us anything, it is that there is no other way.”
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