The Protestant Reformation: Where Does It Go from Here?  

The World Communion Sunday, October 1, worship service at Minneapolis’ Westminster Presbyterian Church featured Rev. Timothy Hart-Andersen’s last of four sermons on the 500th anniversary of the Protestant Reformation: ”The Protestant Reformation Today: Where Does It Go from Here?” [1]The first three sermons, as covered in prior posts, discussed the three great themes of the Reformation: grace alone, faith alone and scripture alone. Below are photographs of the church’s Sanctuary and of Rev. Hart-Andersen.

 

 

 

 

 

Listening for the Word

Readings from Holy Scripture:

Revelation 22: 1-6, 16-17 (NRSV)

“Then the angel showed me the river of the water of life, bright as crystal, flowing from the throne of God and of the Lamb through the middle of the street of the city. On either side of the river is the tree of life with its twelve kinds of fruit, producing its fruit each month; and the leaves of the tree are for the healing of the nations. Nothing accursed will be found there any more. But the throne of God and of the Lamb will be in it, and his servants will worship him; they will see his face, and his name will be on their foreheads. And there will be no more night; they need no light of lamp or sun, for the Lord God will be their light, and they will reign forever and ever.”

“And he said to me, ‘These words are trustworthy and true, for the Lord, the God of the spirits of the prophets, has sent his angel to show his servants what must soon take place.’”

“It is I, Jesus, who sent my angel to you with this testimony for the churches. I am the root and the descendant of David, the bright morning star.”

“The Spirit and the bride say, ‘Come.’
And let everyone who hears say, ‘Come.’
And let everyone who is thirsty come.
Let anyone who wishes take the water of life as a gift.”

Galatians 3: 23-29 (NRSV): 

“Now before faith came, we were imprisoned and guarded under the law until faith would be revealed. Therefore the law was our disciplinarian until Christ came, so that we might be justified by faith. But now that faith has come, we are no longer subject to a disciplinarian, for in Christ Jesus you are all children of God through faith. As many of you as were baptized into Christ have clothed yourselves with Christ. There is no longer Jew or Greek, there is no longer slave or free, there is no longer male and female; for all of you are one in Christ Jesus. And if you belong to Christ, then you are Abraham’s offspring, heirs according to the promise”

Sermon:

“Where does the Reformation go from here? What does the future hold for the great Protestant traditions flowing out of Europe 500 years ago?”

“I see at least three directions we might expect the Reformation to take in coming years.”

First: an ecumenical, interfaith direction. Protestant Churches have shown themselves, especially in the last 50-75 years, to be uniquely capable of forming cross-denominational relationships, usually in institutional, organizational, and structured ways: councils of churches at the local level, the state level, nationally, and at the global level. In coming years this will happen in less institutional ways, less structured ways, and increasingly in local relationships.”

“The past week illustrates this emerging new reality. On Tuesday, for the first time ever, the Evangelical Lutheran Church in America allowed one of its candidates for ministry to be ordained to serve a non-Lutheran church. We celebrated the ordination of Matt Johnson, Westminster’s Interim Associate Pastor, at Bethlehem Lutheran Church. Candidly, that break with tradition did not start in the bishop’s office or the presbytery’s office; it began with a few of us conspiring locally to make it happen. Localized ecumenical relationships, yielding that kind of change. Congratulations, Matt.”

“Then yesterday I co-presided with a Roman Catholic priest at the wedding of a Westminster woman and her Catholic fiancé, now husband. That would have been unthinkable even a few years ago. The fact that we pulled it off has less to do with relaxing of standards in Rome – we did not contact the bishop or presbytery – than with developing ecumenical relationships in local communities. The old walls separating us don’t mean as much anymore.”

“’In Christ Jesus you are all children of God through faith,’ the Apostle Paul writes to the Galatians. ‘There is no longer Jew or Greek’ – Paul dissects the binary way people tend to look at the world – ‘There is no longer slave or free, there is no longer male and female; for all of you are one in Christ Jesus.’ (Galatians 3:6-8)”

“It’s as if we were undoing the divisions resulting from the Reformation between Protestants and Catholics, and among Protestants themselves. If we ask where the Reformation goes from here, an obvious first answer is that it goes in the direction of a Christianity that has fewer barriers standing among and between the various branches of the Church than it has had for the last 500 years.”

“The same thing is happening with interfaith collaboration. The Reformation taught us the God alone is Lord of the conscience, and that grace alone saves us, not our behavior or a particular creed. From those Reformation-era principles it is a short step to respectful interfaith dialogue and cooperation.”

“A major world challenge on the religious horizon – locally and globally – is learning to live with people of other faiths. Protestant churches, with our emphasis on freedom and respecting the rights and responsibilities of individuals with regard to religious matters, can and will lead the way in interfaith collaboration.”

“Westminster is certainly doing its part. Our interfaith dialogue sermons and relationships with multi-faith organizations are not one-off novelties or the whim of your pastor. They are the vanguard of 21st century open-minded, open-hearted Christianity more concerned with practicing the faith in real ways with real people, some of whom have other faiths, than perfecting or judging it.”

“In recent years I have co-presided at a number of Jewish weddings – again, something that even a few years ago would not have happened. I’ve also done this with Buddhist priests. Many of us have attended a Muslim iftar, when the Ramadan fast is broken. We never would have done that 10-15 years ago. These are local outbursts of interfaith commitment – not handed down from on high, but local efforts – resulting in a shifting religious landscape.”

“Where does the Protestant Reformation goes from here? It’s moving in an ecumenical and interfaith direction.”

Secondly, on this World Communion Sunday we’re enjoying sounds and rhythms and movement from all over the globe. Again, this is not a one-time experience, where we trot out the world music on one Sunday a year. We’re now drawing regularly from the music of Christians in other parts of the world to enliven our worship, to teach us other ways of praising God, to inspire us.”

“Over the last 150 years Protestant churches moved out from Europe to the world, in particular the global south, where the Reformation churches are growing rapidly. There are more Presbyterians today in South Korea than there are in the U.S. The same is true for Kenya and South Africa.”

“Christianity is on the move. One hundred years ago two-thirds of the world’s Christians lived in Europe. Today, nearly two-thirds of the world’s Christians live in the global south. The Church there is exploding in growth, and our churches are receding. North American churches had 15% of the world’s Christians 100 years ago; today we have 10%.”

“We can see the impact of this emerging reality not only from a distance, but closer to home. The Roman Catholic priest friend who co-presided at the wedding yesterday serves a Minneapolis parish overflowing with people from Latin America. He told me last Saturday he did 29 baptisms and yesterday 28 were scheduled. They baptize around 400 per year, and they’re all babies of Latino immigrants. The parish has discovered that their future lies not with the Euro-Americans who brought Catholicism here –Irish, Germans and others from Europe –- but with Catholics form the global south. The Roman Church in the US would be shrinking if not for Catholics coming from Latin America.”

“Similarly, we Protestants who lament the decline of our churches here can rejoice in the vast growth of the Reformation churches in the global south. We, too, can welcome immigrants coming from other parts of the world, especially sub-Sahara Africa, where the Reformed churches are so strong. Westminster has experienced an influx of West African Christians over recent decades, now serving as leaders in our church –and what a richer, healthier congregation we are.”

“The global south will bear the Protestant stream of Christianity into the future.”

“The third emerging direction for the Protestant movement, especially in this land, is increasing openness to diversity. At the local level we’re coming to see that in the future our churches will either reflect the contexts in which we minister, or they’ll not be sustainable for the long haul. We’re too isolated, too divided in our communities, racially, ethnically and culturally. It’s not the way of the gospel. Mono-cultural eco-systems cannot continue to thrive. They must be diverse in order to have the adaptive capacities to live into the future.”

“One of the last images of the Bible is found in the Book of Revelation when the Heavenly City comes to earth and settles among the human family. There is a river flowing through that city, and on the banks of the river is the Tree of Life. The leaves of the tree, the text says, ‘Are for the healing of the nations.’”

“I’ve usually interpreted that verse as pointing to healing among the political nations of the earth. But the Greek word here for nations is ethnos, that is, the leaves of the tree are for the healing of the variety of ethnicities in the human family that do not live well together. This may be less a political comment and more a call to learn to live in harmony with those different from us within our own land.”

“The vision of the Holy City invites us to be part of the healing of the racial divide that exists among us, to finally put aside, to do away with, the old reality that Martin Luther King used to remind us of – that Sunday at 11AM is the most segregated hour in America. The Church’s future lies in congregations that are more diverse, that reflect God’s hope that the human family might one day learn to live together in peace.”

“Here at Westminster our new members classes in recent years have been 10-15% racially mixed. Around 7-8% of Westminster members are people of color. We’re changing, but the world is changing a lot faster all around us.”

“A recent study of more than 100,000 Americans in all 50 states shows that only 43% of the population is made up of white Christians. Forty years ago that number was 80%. Twenty years ago it was two-thirds. Things are changing rapidly, all around us, and the church will need to change.”

“And forty years ago 55% of the population was made up of white Protestants. Today that number is under 40%. We are watching in our lifetime the end of America as a white Christian nation. And some see that as a threat. We see the rise of white supremacy and white nationalism and the clinging to white privilege in response, much of it cloaked in Christian language.”[2]

“The changing reality shouldn’t frighten us, but, rather, call us to open our doors and hearts and open our lives to new friends who’ve been our neighbors for many years. We can either move constructively with these challenging new realities and learn ways to be faithful in worship and mission, or we can struggle against them and find our churches continuing to wither and weaken and die. This is hard work, but essential to the future of the church.”

“Where does the 500-year old Reformation go from here? The Protestants churches, heirs to the great legacies of grace alonefaith alone, and scripture alone, will need to grow new ministries that reach across divisions we’ve long accepted as normative. That means creating new ecumenical and interfaith relationships and partnerships, welcoming Christians from the global south and learning from them, participating in the work of racial reconciliation, which may be the most difficult of all these things, and developing congregations that reflect our changing world.”

“To do this, the people of God will have to trust that the Holy Spirit is at work among us, stirring things up for the future health and vitality of the Christian Church.”

“We will have to use a holy imagination to see and join the new thing God is doing among us. May that imagination, that holy imagination, be kindled today at this World Communion table, as we join with Christians around the globe in celebrating the love of God that unites us in one human family, in all its wonderful and rich diversity.”

Conclusion

I agree that “Westminster and other churches need to develop  new ecumenical and interfaith relationships and partnerships, welcoming Christians from the global south and learning from them, participating in the work of racial reconciliation, which may be the most difficult of all these things, and developing congregations that reflect our changing world.”

Westminster already is engaged in global partnerships with churches in Cuba, Cameroon and Palestine, and for 10 years I chaired our Global Partnerships Committee and visited our partners in Cuba (three times), Cameroon (once) and Brazil (once). I know that they have enriched my spiritual life and of others in the church and in our partners.

As the sermon stated, music from around the world will play a major part in our worship as it did this day and as will be discussed in another post.

========================================

[1] The bulletin for this service and the text of the sermon are on the church website. Excerpts of the sermon are  set forth below.

[2] Wilson, We’re at the end of White Christian America. What will that mean?, Guardian (Sept. 20, 2017); Pew Research Center, Religious Landscape Study.

 

 

 

 

 

 

 

 

 

 

 

 

 

Evaluating Ta-Neshi Coates Through the Prism of President Obama’s Howard and Rutgers Universities Speeches

President Obama’s commencement address at Howard University was examined in a prior post. Key points in Obama’s speech for this purpose are the following:

  • “Be confident in your heritage.  Be confident in your blackness.”
  • African Americans have a “particular awareness of injustice and unfairness and struggle.  That means we cannot sleepwalk through life.  We cannot be ignorant of history. . . . We have cousins and uncles and brothers and sisters who we remember were just as smart and just as talented as we were, but somehow got ground down by structures that are unfair and unjust.”
  • “You have to go through life with more than just passion for change; you need a strategy. . . . [C]hange requires more than righteous anger.  It requires a program, and it requires organizing.”

Now we evaluate a prominent contemporary African-American, Ta-Nehisi Coates, through the prism of that speech and of a related presidential speech at Rutgers University.

Although President Obama in his speech specifically commended Coates, a Howard alumnus who did not graduate, for writing “a book that wins the National Book Award” and “the new run of ‘Black Panther.’” Obama did not attempt to determine whether Coates satisfied the above charge to the class. If Obama had done so, I believe he would have concluded that Coates did not meet this version of the challenge.[1]

Coates’ major work to date, “Between the World and Me,” clearly demonstrates his confidence in his black heritage, his overwhelming awareness of injustice, unfairness and struggle and his passion for change. In this sense he meets at least this part of the Obama challenge.

However, Coates fails in this book to go beyond righteous anger. He does not have a strategy or program for change. In fact, his book eschews any such program as destined for failure. And when he addresses one possible program for change– reparations for past racial injustice in a separate Atlantic Magazine article–he fails, in my opinion, because he weakly concluded that Congress should adopt a bill to establish a commission to investigate the issue and because he apparently makes an erroneous assessment of a Chicago class action lawsuit involving contracts for deed. The more detailed basis for this negative assessment is set forth in an earlier post. [2]

In addition, Coates in an interview by Charlie Rose demonstrated a facile reading of Rev. Dr. Martin Luther King, Jr.’s famous saying, “The arc of the moral universe is long, but it bends towards justice.” According to Coates, this saying is a demonstrably false reading of history and a false prediction of the future and, therefore, meaningless. But the saying was never intended to be a history lesson or a future prediction. Instead, It was intended to be inspiration to continue the struggle for justice for those who were so engaged. Indeed, President Obama understood it correctly when in his speech at Rutgers University he said,

  • “But progress is bumpy.  It always has been.  But because of dreamers and innovators and strivers and activists, progress has been this nation’s hallmark.  I’m fond of quoting Dr. Martin Luther King, Jr., who said, ‘The arc of the moral universe is long, but it bends towards justice.’ . . . I believe that.  But I also believe that the arc of our nation, the arc of the world does not bend towards justice, or freedom, or equality, or prosperity on its own.  It depends on us, on the choices we make, particularly at certain inflection points in history; particularly when big changes are happening and everything seems up for grabs.” (Emphasis added.)

Perhaps Coates is off the hook with Obama’s concession that there is no one way to be black and there is no litmus test for black authenticity or as 1 Corinthians 12 reminds us, there are different gifts to different people for the common good (verses 4-11) and there are many parts to one body and all work together for the common good (verses 12-31). Thus, perhaps Coates’ gift is to express anger over racial injustice and to leave it to others to figure out what to do about that injustice and to work to overcome it.

Although Coates has said that his book was not written for “white” people, `I have to say that as a “white” septuagenarian, I initially and vigorously disagreed with Coates’ ranting that others and I “have been brought up hopelessly, tragically, deceitfully, to believe that they are white,” that “’race’ [was] a defined, indubitable feature of the natural world” and that “the process of washing the disparate tribes white, the elevation of the belief in being white [was achieved] through the pillaging of life, liberty, labor, and land; through the flaying of blacks; the chaining of limbs; the strangling of dissidents; the destruction of families; the rape of mothers; the sale of children; and various other acts meant, first and foremost, to deny you [Coates’ son] and me the right to secure and govern our own bodies.” (Pp. 7-8)

Yes, I always have regarded myself as white, checked the box “White” or “Caucasian” on many forms without a second thought and found myself identified as “white” on a 1940 U.S. Census form. But I never have done any of the awful things that Coates says were done to elevate my belief in being white.

Nevertheless, Coates’ rant has been nagging and causing me to conduct further research and reflection. I, therefore, now think that Coates is correct on this important point, which I will explore in subsequent posts. Thus, perhaps Coates is satisfying, in his own way, the Obama criteria for African-American men, and indeed for all of us, to be honorable citizens of this great country.

==========================================================

[1] Reactions to Ta-Nehisi Coates’ “Between the World and Me,” dwkcommentaries.com (Aug. 13, 2015); Additional Reflections on Ta-Nehisi Coates, dwkcommentaries.com (Feb. 3, 2016).

[2] Ta-Nehisi Coates’ Unsatisfactory Case for Reparations, dwkcommentaries.com (Oct. 18, 2015). See also Ta-Nehisi Coates Discusses the Age of Mass Incarceration, dwkcommentaries.com (Sept. 17, 2015).

 

 

 

 

 

 

 

Political and Civics Lessons from President Obama at Rutgers University

On May 15, President Obama delivered the commencement address at Rutgers University in New Brunswick, New Jersey.[1] Below are photographs of the President and the graduates at Rutgers.

Obama @ Rutgers

Rutegers stduents

 

 

 

 

The press naturally focused on the following remarks that indirectly criticized Donald Trump, the presumptive Republican presidential nominee:

  • “When you hear someone longing for the “good old days,” . . . It ain’t so. The ‘good old days’ weren’t that great.”
  • “The world is more interconnected than ever before, and it’s becoming more connected every day.  Building walls won’t change that. . . . [To] help ourselves we’ve got to help others, not pull up the drawbridge and try to keep the world out. . . . Building walls . . . won’t boost our economy, and it won’t enhance our security either.”
  • “Isolating or disparaging Muslims, suggesting that they should be treated differently when it comes to entering this country . . . is not just a betrayal of our values . . . it would alienate the very communities at home and abroad who are our most important partners in the fight against violent extremism.   Suggesting that we can build an endless wall along our borders, and blame our challenges on immigrants — that doesn’t just run counter to our history as the world’s melting pot; it contradicts the evidence that our growth and our innovation and our dynamism has always been spurred by our ability to attract strivers from every corner of the globe.  That’s how we became America.”
  • “Facts, evidence, reason, logic, an understanding of science — these are good things. These are qualities you want in people making policy. Facts, evidence, reason, logic, an understanding of science — these are good things. These are qualities you want in people making policy. . . . In politics and in life, ignorance is not a virtue. It’s not cool to not know what you’re talking about. That’s not keeping it real, or telling it like it is. That’s not challenging political correctness.  That’s just not knowing what you’re talking about.”

Obama also continued with his civics lessons that were discussed in his final State of the Union Address and remarks at the Illinois General Assembly, a London town hall meeting and Howard University’s commencement ceremony that were discussed in earlier posts. Here are the similar remarks at Rutgers.

“America’s progress has never been smooth or steady.  Progress doesn’t travel in a straight line.  It zigs and zags in fits and starts.  Progress in America has been hard and contentious, and sometimes bloody.  It remains uneven and at times, for every two steps forward, it feels like we take one step back.”

“But progress is bumpy.  It always has been.  But because of dreamers and innovators and strivers and activists, progress has been this nation’s hallmark.  I’m fond of quoting Dr. Martin Luther King, Jr., who said, ‘The arc of the moral universe is long, but it bends towards justice.’ It bends towards justice.  I believe that.  But I also believe that the arc of our nation, the arc of the world does not bend towards justice, or freedom, or equality, or prosperity on its own.  It depends on us, on the choices we make, particularly at certain inflection points in history; particularly when big changes are happening and everything seems up for grabs.”

“You are graduating at such an inflection point.  Since the start of this new millennium, you’ve already witnessed horrific terrorist attacks, and war, and a Great Recession.  You’ve seen economic and technological and cultural shifts that are profoundly altering how we work and how we communicate, how we live, how we form families.  The pace of change is not subsiding; it is accelerating.  And these changes offer not only great opportunity, but also great peril.”

Therefore, the new graduates need to participate in the political process. You need to vote. “And if participation means voting, and it means compromise, and organizing and advocacy, it also means listening to those who don’t agree with you.”

“If you disagree with somebody, bring them in and ask them tough questions.  Hold their feet to the fire.  Make them defend their positions.   If somebody has got a bad or offensive idea, prove it wrong.  Engage it.  Debate it.  Stand up for what you believe in. Don’t be scared to take somebody on.  Don’t feel like you got to shut your ears off because you’re too fragile and somebody might offend your sensibilities.  Go at them if they’re not making any sense. Use your logic and reason and words.  And by doing so, you’ll strengthen your own position, and you’ll hone your arguments.  And maybe you’ll learn something and realize you don’t know everything.  And you may have a new understanding not only about what your opponents believe but maybe what you believe.  Either way, you win.  And more importantly, our democracy wins.”

“Gear yourself for the long haul.  Whatever path you choose, you’re going to have some setbacks.  You will deal occasionally with foolish people.  You will be frustrated.  You’ll have a boss that’s not great.  You won’t always get everything you want — at least not as fast as you want it.  So you have to stick with it.  You have to be persistent.  And success, however small, however incomplete, success is still success. . . . Better is good.  It may not be perfect, it may not be great, but it’s good.  That’s how progress happens — in societies and in our own lives.”

“So don’t lose hope if sometimes you hit a roadblock.  Don’t lose hope in the face of naysayers.  And certainly don’t let resistance make you cynical.  Cynicism is so easy, and cynics don’t accomplish much.  As a friend of mine who happens to be from New Jersey, a guy named Bruce Springsteen, once sang, “they spend their lives waiting for a moment that just don’t come.”  Don’t let that be you.  Don’t waste your time waiting.”

“Throughout our history, a new generation of Americans has reached up and bent the arc of history in the direction of more freedom, and more opportunity, and more justice.”

=============================================

[1] White House, Remarks by the President at Commencement Address at Rutgers, the State University of New Jersey (May 15, 2016); Rutgers University, Commencement Address: President Barack Obama (May 15, 2016) (video); Harris, Obama Swipes at Trump, but Doesn’t Name Him, in Speech at Rutgers, N.Y. Times (May 15, 2016).

The Voting Rights Act of 1965

On February 27, 2013, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of an important provision of the Voting Rights Act of 2006.[1] This provision extended for 25 years a requirement in section 5 of the original Voting Rights Act of 1965 for certain states to obtain pre-clearance from a special federal court or the U.S. Attorney General for any changes in their election laws.[2]

Before we review that oral argument, we will examine in separate posts four predicates for that argument.[3] This post will discuss the first of these predicates–the relevant substance of the original Voting Rights Act of 1965.[4]

This 1965 statute (as well as the 2006 statute) was enacted pursuant to Section 2 of the Fifteenth Amendment to the U.S. Constitution that provides, “The Congress shall have power to enforce this article by appropriate legislation.” That amendment, which was ratified after the Civil War in 1870, states in Section 1: “The 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”

LBJ signing VRA65

The Voting Rights Act of 1965 is seen as a major accomplishment of the Congress and President Lyndon B. Johnson. (The photo to the left shows President Johnson signing the statute; immediately behind him is Rev. Dr. Martin Luther King, Jr.) It was adopted as a result of congressional recognition that case-by-case litigation over racial voting discrimination was slow, expensive and ineffective and that a stature was needed “to cure the problem of voting discrimination” and “rid the country of racial discrimination in voting,”  (South Carolina v. Katzenbach, 383 U.S. 301, 313, 315 (1966).)

The 1965 Act combined a permanent, case-by-case enforcement mechanism with a set of more stringent, temporary remedies designed to target those areas of the country where racial discrimination in voting was concentrated.

Section 2, the Act’s main permanent provision, forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” (42 U.S.C. § 1973(a).) Applicable nationwide, section 2 enables individuals to bring suit against any state or jurisdiction to challenge voting practices that have a discriminatory purpose or result. (See Thornburg v. Gingles, 478 U.S. 30, 35 (1986).)

Section 5 of the statute and the focus of the current case before the Supreme Court only applies to certain “covered jurisdictions” and “prescribes remedies . . . which go into effect without any need for prior adjudication.” (Katzenbach, 383 U.S. at 327-28.) Section 5 suspends “all changes in state election procedure until they [are] submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the [U.S.] Attorney General.” (Northwest Austin Municipal Utility District No. One v. Holder, 129 S. Ct. 2504, 2509 (2009),

A “covered jurisdiction” seeking to change its voting laws or procedures must either submit the change to the Attorney General or seek preclearance directly from the three-judge court. If such a jurisdiction opts for the former and if the Attorney General lodges no objection within 60 days, the proposed law can take effect.(42 U.S.C. § 1973c(a).) But if the Attorney General lodges an objection, the submitting jurisdiction may either request reconsideration, (28 C.F.R. § 51.45(a)), or seek a de novo  determination from the three-judge district court. (42 U.S.C. § 1973c(a).)

Either way, preclearance may be granted only if the jurisdiction demonstrates that the proposed change to its voting law neither “has the purpose nor . . . the effect of denying or abridging the right to vote on account of race or color.” (Id.) This provision “preempted the most powerful tools of black disenfranchisement ,” resulting in “undeniable” improvements in the protection of minority voting rights. (Northwest Austin, 129 S. Ct. at 2509. 2511.)

The “covered jurisdictions” subject to section 5 were identified in section 4(b), as originally enacted, as any state or political subdivision of a state that “maintained a voting test or device as of November 1, 1964, and had less than 50% voter registration or turnout in the 1964 presidential election.” (Voting Rights Act of 1965, Pub. L. No. 89-110, § 4(b), 79 Stat. 437, 438.) Congress chose these criteria carefully because it knew precisely which states it sought to cover, those six southern states with the worst historical records of racial discrimination in voting: Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia.

In so doing, Congress recognized that these criteria for determining “covered jurisdictions” might have to be adjusted over time.

  • First, as it existed in 1965, section 4(a) allowed jurisdictions to earn exemption from coverage by obtaining from a three-judge district court a declaratory judgment that in the previous five years (i.e., before they became subject to the Act) they had used no test or device “for the purpose or with the effect of denying or abridging the right to vote on account of race or color.” (1965 Act § 4(a).) This so-called “bailout” provision, as subsequently amended, addresses potential over-inclusiveness of section 5, allowing jurisdictions with clean records to terminate their section 5 pre-clearance obligations.
  • Second, section 3(c) authorizes federal courts to require pre-clearance by any non-covered state or political subdivision found to have violated the Fourteenth or Fifteenth Amendments. (42 U.S.C. § 1973a(c).) Specifically, courts presiding over voting discrimination suits may “retain jurisdiction for such period as [they] may deem appropriate” and order that during that time no voting change take effect unless either approved by the court or unopposed by the Attorney General. (Id.) This judicial “bail-in” provision addresses the formula’s potential under-inclusiveness.

In South Carolina v. Katzenbach, the Supreme Court sustained the constitutionality of section 5, holding that its provisions “are a valid means for carrying out the commands of the Fifteenth Amendment.”  As originally enacted in 1965, section 5 was to remain in effect for five years. Congress subsequently renewed these temporary provisions, including sections 4(b) and 5, in 1970 (for five years), in 1975 (for seven years), and in 1982 (for twenty-five years).[5] The Supreme Court also sustained the constitutionality of each extension through 2007. (Georgia v. United States, 411 U.S. 526 (1973); City of Rome v. United States, 446 U.S. 156 (1980); Lopez v. Monterey County, 525 U.S. 266 (1999).)

——————————

[1] The 2006 statute’s correct title is the Fannie Lou Hamer, Rosa Parks, Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006.

[2] The states now subject to section 5 are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.

[3] The other predicates to be examined in separate posts are the Voting Rights Act of 2006; the 2009 Supreme Court decision regarding the 2006 statute (Northwest Austin Municipal Utility District No. One v. Holder); and the 2012 decision of the U.S. Court of Appeals for the D.C. Circuit, 2 to 1, upholding the constitutionality of the 2006 statute in the case now pending in the Supreme Court. (Shelby County, Alabama v. Holder.)

[5] The 1982 extension also made the provision for “bailout” from section 5 restrictions substantially more permissive.