The Grio — The Supreme Court’s decision on Tuesday in Shelby County,Alabama v. Holder, is devastating, but not definitive. This court has done significant damage to the most important piece of Civil Rights legislation in our modern history, but there is still hope to fight back and restore protective laws that ensure all eligible Americans can access the ballot.
First, the good news: This does not change who has a right to vote.
I have received panicked emails from friends asking if the right to vote for African-Americans is in jeopardy. Strictly speaking, it is not. The right to vote for men, regardless of race, is protected by the 15th Amendment to the United States constitution. Ratified in 1870, the 15th amendment states, “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” Black women were added to constitutional citizenship through a combination of the 15th amendment and the 19th amendment, which prohibits disenfranchisement based on sex.
Today’s Supreme Court decision in Shelby v. Holder does not strip black men and women, or anyone else, of the right to vote. However, it does incalculable violence to the primary tool necessary to ensure state governments honor these constitutional rights.
Now, some bad news: The history of our nation demonstrates that the constitutional right to vote is not enough to ensure that citizens can exercise this right.
Although the 15th and 19th amendments forbid states from simply declaring African-Americans ineligible to vote, they did not protect black voters in practice. Throughout the Jim Crow era, Southern states innovated a menu of presumably race-neutral policies that effectively kept black Americans from voting. Grandfather clauses, poll taxes, literacy tests, all-white primaries, and intimidation at the polls were strategies enforced with state-sanctioned violence to effectively disenfranchise generations of black Americans.
It was the Voting Rights Act of 1965 that finally put a stop to these practices. It was Section 5 of that Act that has protected those gains for decades.
So here is the really bad news: Section 5 of the Voting Rights Act has been rendered moot, at least for now.
Before 10 a.m. on Tuesday, Section 5 of the Voting Rights Act of 1965 provided that certain states and localities with a particularly egregious history of racial restrictions and racial violence around voting were required to “pre-clear” proposed changes in voting or election procedures through the Department of Justice. The provision covered many, but not all, of the states that had enacted the most vicious Jim Crow practices in the nearly 100 years leading up the the VRA’s passage. Section 4 of the Voting Rights Act determined which areas were covered by Section 5.
But on Tuesday, the Supreme Court struck down Section 4, saying that the formula for determining which states had to ask permission to change their voting procedures and practices was unconstitutional. By striking down Section 4, the Court made it impossible to implement Section 5, at least in the short term. The majority opinion described the formula as “obsolete” and seems to argue that states must have a kind of assumed equality as members of our union.
The Court is wrong.
As Yale Law Professor Akhil Reed Amar argues, the 14th Amendment provides a model, embedded in our constitution, for treating states differently when they show a history of egregious violations against humanity and democracy. Amar points out, “states with abysmal track records of rights-enforcement and democratically deficient voting rules were not allowed back into Congress to sit alongside states with minimally acceptable track records, and these same democratically deficient states were also not allowed to resume full powers of state self-governance enjoyed by their non-deficient sister states.”
It is entirely consistent with our constitution to require states with pathetic track records to meet a higher standard of self-governance than those without those histories.
So, what can we do?
Section 5 pre-clearance ensured that many states had to ask permission before passing new legislation that affects voting. Now those states can—and will—pass laws without an automatic review. But citizens can still force the courts to determine if these laws are unfair by bringing suit against them. This significantly shifts the burden and makes if much harder to protect fair voting practices. But who said democracy was easy? Pre-clearance was an effective deterrent to discriminatory practices, but threat of swift litigation can also deter those who seek to create barriers to voting. We will need the commitment of an army of civil rights lawyers to begin to bring these cases.