Voting Rights Act of 1965 – dwkcommentaries

Presidential Historian Jon Meacham’s Remarks About Walter Mondale at His Memorial Service

At the May 1^st Memorial Service for former Vice President Walter Mondale, Presidential Historian Jon Meacham delivered the following remarks.[1]

“The story begins the year before he was even old enough to vote. It was a late July afternoon in 1948, and Fritz Mondale, then all of 20, had been put in charge of the Second Congressional District for Hubert Humphrey’s U.S. Senate campaign. No one knew what second prize was. The annual Martin County Farm Bureau Federation picnic at Fox Lake Park needed a speaker, and Mr. Mondale arranged for Humphrey to headline the event.”

“The political climate was charged and complicated in that American summer. There was anxiety at home, communist aggression abroad, as a Democratic president sought to govern a fractious party and a divided country. As Mark Twain once said, history may not repeat itself, but it does rhyme. Seen as too liberal by the right and too conservative by the left, Harry Truman would say he didn’t give Republicans hell; he just told them the truth and they thought it was hell.”

“In his own party President Truman faced opposition over his desegregation of the military and his push for civil rights. Only weeks before the Martin County picnic, Mayor Humphrey’s civil rights speech at the Democratic convention in Philadelphia had helped send Dixiecrats, segregationist Dixiecrats, out of the hall and back into the Old Confederacy.”

“But far from the Olympian drama of Philadelphia, in Martin County, after the 4-H club band had played, Humphrey took the stage. He was passionate and funny. He said, ‘Kick the rascals out, and vote the new rascals in.’ Afterward Humphrey thanked his young ally, telling Mr. Mondale: ‘Your work is needed. We have so much to do.’”

“Mr. Mondale was over the moon. ‘After that day,’ he recalled, ‘I think I never stopped.’”

“’I think I never stopped.’ And we live in a better, nobler, more perfect Union because Walter Frederick Mondale never stopped.”

“Now, for the politicians in the room — and there might be one or two of you who snuck through customs — an election result: In 1948, Humphrey carried Mondale’s territory, the very Republican Second District, by 8,500 votes. It was Mr. Mondale’s first victory, and it was a sweet one, second only perhaps to his seven dates-in-six-months courtship of Joan Adams.”

“The son of a Methodist minister and farmer, as a child Walter Mondale absorbed a gospel that he never stopped seeking to put into practice: That we are summoned to love our neighbors as ourselves, to lift up the most vulnerable among us — to feed the hungry, to clothe the naked, to strengthen the weak.”

“There’s nothing more important — nothing more American — than that: To enlist in the perennial battle to make real the founding ideal of this nation, that we are in fact created equal.”

“Now, we can, and we will, and we do disagree about the means of governance. But at our best, Americans have agreed on the end of our common project: To give everyone, in Lincoln’s phrase, ‘an open field and a fair chance.’”

“Walter Mondale devoted his life to that cause. He never stopped seeking a fuller, freer, fairer America. And his years in the arena are testament to a truth of human experience: That the polls and the passions of the moment are just that — of the moment. Headlines come and go; history endures. The tumult of politics rage; true service stands long after the furies of the moment have passed.”

“Walter Mondale understood something fundamental: That we are at our best not when we build walls, but when we build bridges; not when we point fingers, but when we lend a hand; not when we fear, but when we hope. And from age to age, history honors those who put ‘We the People’ above the will to power; the rule of law above the reign of party; and difficult truths above self-serving fictions.”

“Now, the Mondales were a stoic people. His father, Theodore, fought a stutter, struggled to farm, went to seminary, and raised a son, Fritz, who knew hardship but lived in hope.”

“It was a hope that drove him all his life. He was born a year before the stock market crash. His childhood was shaped by the Great Depression. He believed in hard work — he liked to say that he was the only pea-lice inspector to ever become Vice President of the United States. I didn’t check it, but I think he’s on safe ground. Some might have preferred it. He served in the U.S. Army, went to law school on the GI Bill, and always gave back to the country that had made his life possible.”

“Now, he was often caricatured, as you all know, as a big-government liberal. But he’s better understood as a Cold War liberal — a man devoted, at home and abroad, to freedom and to fairness.”

“Freedom and fairness: Bear those words in mind. For they are the words that shaped Walter Mondale’s consequential life — and Lord knows they are the words that must guide us still.”

“In the struggle between democracy and dictatorship in the 20th century, Fritz Mondale cast his lot with neither the utopians of the left nor the reactionaries of the right. He stood, instead, for the centrality of the individual, for the sanctity of liberty, and for the pursuit of possibility against the totalitarian impulse.”

“As attorney general of Minnesota he was instrumental in the Gideon case that gave indigent defendants the right to counsel. He brokered the deal that would end segregation forever in the Democratic Party, long the bastion of Jim Crow.”

“And then, he came to the Senate. In the mid-1960s, in the seat that Hubert Humphrey had won the year of that Farm Bureau picnic, Sen. Mondale sensed a vital intersection of forces. To him, as he put it, it was ‘as if we took the intellectual heritage of Franklin Roosevelt, the moral inspiration of John Kennedy, and a decade of pent-up demand for social change and converted them into social reality.’ As a senator he was a crucial voice for the Voting Rights Act of 1965. He led the battle for fair housing in 1968, mastering the Senate in that essential hour.”

“And he never stopped. His causes included Title IX to open opportunities for women. Head Start and elementary and secondary education. Filibuster reform. Nutrition and antipoverty programs. Workers’ rights. Environmental protections. Consumer protections. Early attention to the crisis of climate change. The domestic side of the Church Committee, which revealed the FBI’s wiretapping and harassment of Martin Luther King Jr. The transformation of the vice-presidency in the Carter years. A challenge to apartheid that ignited the chain of events that led to the release of Nelson Mandela. And the nomination of a woman, Geraldine Ferraro, to run with him on a national ticket.”

“Walter Mondale was a giant of the Senate, a formidable vice president, and a truth-telling presidential nominee of his party who never stopped standing by principle.”

“To be sure, it was not always the smoothest of rides. Fritz Mondale knew the vicissitudes of politics as well as any American ever has. When he explored a run for president in 1976, he recalled that ‘after a year I was running six points behind ‘I Don’t Know’ … and I wanted to challenge him to a debate.’ Mr. Mondale would tell the story of Sam Donaldson’s asking Ronald Reagan in 1984, ‘What do you want for Christmas?’ And Reagan: ‘Minnesota.’ When Mondale went to ask George McGovern when did it stop hurting to lose the presidency, Sen. McGovern said, ‘I don’t know. I’ll tell you when it happens.’”

“Walter Mondale loved his family. He loved fishing, Shakespeare, Dairy Queen, the United States Senate, Hubert Humphrey, cigars and the state of Minnesota.”

“And most of all he loved America — its complexities and its hopes, its promise and its possibilities. He thought of himself as a public servant, as a citizen with an obligation to the common good. To him, government was not the enemy, or the problem, but rather a manifestation of love of neighbor and of country.”

“On the night of his defeat in 1984 he spoke not only to the moment, as painful as it was, but to history, saying: ‘Let us continue to seek an America that is just and fair. That has been my fight … I’m confident that history will judge us honorably.’”

“And so it has.”

“One of Mr. Mondale’s favorite verses of scripture tells us much. ‘I have fought the good fight,’ St. Paul said; ‘I have finished the race, I have kept the faith.’” [2 Timothy 4:7]

The first part of that chapter of Second Timothy is quoted less often, but is worth remembering. ‘Preach the word,’ the apostle wrote; ‘be prepared in season and out of season.’” [2 Timothy 4: 1-2]

“In season and out of season — justice knows no season. Truth knows no season. Freedom knows no season. Fairness knows no season. Walter Mondale knew that. He lived by that. And today we salute him for that.”

“There are children in America today who will not go hungry because of Fritz Mondale. There are Black people in America today who can vote, and work, and live more freely and fairly because of Fritz Mondale. There are women in America today who see no limit to their dreams because of Fritz Mondale. There are safer cars in America, there are rivers of clean water in America, there are enclaves of untouched wildlife in America today because of Fritz Mondale.”

“He never stopped believing in this country. He never stopped fighting for its people. And thankfully, he never stopped defending democracy.”

“He never stopped. And nor, in his memory, must we.”

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

[1] Read presidential historian Jon Mecham’s remarks at Walter Mondale’s memorial service, StarTribune (May 2, 2022). Professor Meacham is the Carolyn T. and Robert M. Rogers Chair in American Presidency at Vanderbilt University.

President Obama’s Civics Lesson at Town Hall Meeting in London

On April 23, 2016, President Barack Obama addressed a town-hall meeting of 500 young Leaders of the United Kingdom at London’s Lindley Hall. [1] Below are photographs of Obama and of some of the young leaders at the meeting.

Here is Obama’s civics lesson that is directly relevant to U.S. citizens

Post-World War II World

The U.S. and Great Britain “ultimately made up [over the American Revolutionary War] and ended up spilling blood on the battlefield together [in World War II], side-by-side, against fascism and against tyranny, for freedom and for democracy. And from the ashes of war, we led the charge to create the institutions and initiatives that sustain a prosperous peace — NATO; Bretton Woods, the Marshall Plan, the EU. The joint efforts and sacrifices of previous generations of Americans and Brits are a big part of why we’ve known decades of relative peace and prosperity in Europe, and that, in turn, has helped to spread peace and prosperity around the world.“

“And think about how extraordinary that is. For more than 1,000 years, this continent was darkened by war and violence. It was taken for granted. It was assumed that that was the fate of man. Now, that’s not to say that your generation has had it easy. Both here and in the United States, your generation has grown up at a time of breathtaking change.”

“You’ve come of age through 9/11 and 7/7 [the date of the 2005 terror attacks on a London bus and Underground trains]. You’ve had friends go off to war. You’ve seen families endure recession. The challenges of our time — economic inequality and climate change, terrorism and migration all these things are real. And in an age of instant information, where TV and Twitter can feed us a steady stream of bad news, I know that it can sometimes seem like the order that we’ve created is fragile, maybe even crumbling, maybe the center cannot hold. And we see new calls for isolationism or xenophobia. We see those who would call for rolling back the rights of people; people hunkering down in their own point of view and unwilling to engage in a democratic debate. And those impulses I think we can understand. They are reactions to changing times and uncertainty. “

“I implore you to reject those calls to pull back. I’m here to ask you to reject the notion that we’re gripped by forces that we can’t control. And I want you to take a longer and more optimistic view of history and the part that you can play in it. I ask you to embrace the view of one of my predecessors, President John F. Kennedy, who once said: “Our problems are man-made. Therefore, they can be solved by man. And man can be as big as he wants.”

The “world, for all of its travails, for all of its challenges, has never been healthier, better educated, wealthier, more tolerant, less violent, more attentive to the rights of all people than it is today. “

“That doesn’t mean we don’t have big problems. That’s not a cause for complacency, but it is a cause for optimism. You are standing in a moment where your capacity to shape this world is unmatched. What an incredible privilege that is.”

Reject “pessimism and cynicism; know that progress is possible, that our problems can be solved. Progress requires the harder path of breaking down barriers, and building bridges, and standing up for the values of tolerance and diversity that our nations have worked and sacrificed to secure and defend. Progress is not inevitable, and it requires struggle and perseverance and discipline and faith.”

“Fighting for change that you may not live to see, but that your children will live to see. That’s what this is all about. . . . Whether in the Cold War or world war, movements for economic or social justice, efforts to combat climate change — our best impulses have always been to leave a better world for the next generation.”

Historical Perspective

Abolitionists “in the 1700s . . . were fighting against slavery, and for a hundred years built a movement that eventually led to a civil war, and the amendments to our Constitution that ended slavery and called for equal protection under the law. It then took another hundred years for those rights that had been enshrined in the Constitution to actually be affirmed through the Civil Rights Act of 1964 and the Voting Rights Act of 1965. And then it’s taken another 50 years to try to make sure that those rights are realized. And they’re still not fully realized. There’s still discrimination in aspects of American life, even with a black President.”

This history means “that if any of you begin to work on an issue that you care deeply about, don’t be disappointed if a year out, things haven’t been completely solved. Don’t give up and succumb to cynicism if, after five years, poverty has not been eradicated, and prejudice is still out there somewhere, and we haven’t resolved all of the steps we need to take to reverse climate change. “

“Dr. [Martin Luther] King [,Jr.] said, ‘The arc of the moral universe is long, but it bends towards justice.’ And it doesn’t bend on its own. It bends because we pull it in that direction. But it requires a series of generations working and building off of what the previous one has done. “ (Emphasis added.)

Passion To Highlight Societal Problems

“As a general rule, I think that what, for example, Black Lives Matter is doing now to bring attention to the problem of a criminal justice system that sometimes is not treating people fairly based on race, or reacting to shootings of individuals by police officers, has been really effective in bringing attention to problems.”

Need To Have a Strategy for Change and Compromise

But “once you’ve highlighted an issue and brought it to people’s attention and shined a spotlight, and elected officials or people who are in a position to start bringing about change are ready to sit down with you, then you can’t just keep on yelling at them. And you can’t refuse to meet because that might compromise the purity of your position.”

“The value of social movements and activism is to get you at the table, get you in the room, and then to start trying to figure out how is this problem going to be solved. You, then, have a responsibility to prepare an agenda that is achievable, that can institutionalize the changes you seek, and to engage the other side, and occasionally to take half a loaf that will advance the gains that you seek, understanding that there’s going to be more work to do, but this is what is achievable at this moment.

And too often what I see is wonderful activism that highlights a problem, but then people feel so passionately and are so invested in the purity of their position that they never take that next step and say, okay, well, now I got to sit down and try to actually get something done..”

Everyone has “to be principled, you have to have a North Star, a moral compass. There should be a [good] reason for you getting involved in social issues. . . . But you have to recognize that, particularly in pluralistic societies and democratic governments like we have in the United States and the UK, there are people who disagree with us. They have different perspectives. They come from different points of view. And they’re not bad people just because they disagree with us. They may, in fact, assert that they’ve got similar principles to ours, but they just disagree with us on the means to vindicate those principles.”

Compromise “does not mean surrendering what you believe, it just means that you are recognizing the truth, the fact that these other people who disagree with you or this other political party, or this other nation — that they have dignity too, that they have worth as well, and you have to hear them and see them.”

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

[1] White House, Remarks by President Obama in Town Hall with Young Leaders of the UK (April 23, 2016); Gani, Barack Obama tells young people that progress is possible, Guardian (April 23, 2016); Hayden, Obama’s ‘Town Hall’ Meeting with British Youth Covered Gender Rights, Islamophobia, and Leadership, Vice News (April 23, 2016).

President Obama’s Challenging Commencement Address at Howard University

On May 7 President Barack Obama delivered a fascinating and challenging commencement address at Washington, D.C.’s Howard University for over 2,100 graduates with bachelor, masters, Ph.D. and professional degrees and an audience of over 25,000.[1] Below are photographs of President Obama during his address and of the graduates and audience at Howard.

Although the primary addresses for the speech were the predominantly African-American Howard graduates and audience, it also is a message for every U.S. citizen and others. The following extensive excerpts of that speech will be used in a subsequent post to evaluate two prominent contemporary African-American men—Bryan Stevenson and Ta-Nehisi Coates.

The President’s Address[2]

Commendation of Howard University

Not surprisingly Obama opened with commendation of Howard University, a federally chartered, private, doctoral university, classified as a high research activity institution. With an enrollment of more than 10,000 students, its undergraduate, graduate, professional and joint degree programs span more than 120 areas of study within 13 schools and colleges.

“The Freedman’s Bureau,” he said, “established Howard [in 1867] just four years after the Emancipation Proclamation; just two years after the Civil War came to an end. They created this university with a vision — a vision of uplift; a vision for an America where our fates would be determined not by our race, gender, religion or creed, but where we would be free — in every sense — to pursue our individual and collective dreams.”

“It is that spirit that’s made Howard a centerpiece of African-American intellectual life and a central part of our larger American story. This institution has been the home of many firsts: The first black Nobel Peace Prize winner [Ralph Bunche]. The first black Supreme Court justice [Thurgood Marshall]. But its mission has been to ensure those firsts were not the last. Countless scholars, professionals, artists, and leaders from every field received their training here. The generations of men and women who walked through this yard helped reform our government, cure disease, grow a black middle class, advance civil rights, shape our culture. The seeds of change — for all Americans — were sown here.”

Comparison of 1983 and 2016

“America is a better place today than it was when I graduated from college [1983]. “

“I tell you all this because it’s important to note progress. Because to deny how far we’ve come would do a disservice to the cause of justice, to the legions of foot soldiers; to not only the incredibly accomplished individuals who have already been mentioned, but your mothers and your dads, and grandparents and great grandparents, who marched and toiled and suffered and overcame to make this day possible. I tell you this not to lull you into complacency, but to spur you into action — because there’s still so much more work to do, so many more miles to travel.”

“We’ve got a justice gap when too many black boys and girls pass through a pipeline from underfunded schools to overcrowded jails. This is one area where things have gotten worse. When I was in college, about half a million people in America were behind bars. Today, there are about 2.2 million. Black men are about six times likelier to be in prison right now than white men.”

Charge to the Graduating Class

Obama then delivered a long, three-point charge to the graduating class.

“First , . . . be confident in your heritage. Be confident in your blackness. One of the great changes that’s occurred in our country since I was your age is the realization there’s no one way to be black. . . . There’s no straitjacket, there’s no constraints, there’s no litmus test for authenticity.”

“You can write a book that wins the National Book Award, or you can write the new run of “Black Panther.” Or, like one of your alumni, Ta-Nehisi Coates, you can go ahead and just do both. You can create your own style, set your own standard of beauty, embrace your own sexuality.”

“Second, even as we each embrace our own beautiful, unique, and valid versions of our blackness, remember the tie that does bind us as African-Americans — and that is our particular awareness of injustice and unfairness and struggle. That means we cannot sleepwalk through life. We cannot be ignorant of history. We can’t meet the world with a sense of entitlement. We can’t walk by a homeless man without asking why a society as wealthy as ours allows that state of affairs to occur. We can’t just lock up a low-level dealer without asking why this boy, barely out of childhood, felt he had no other options. 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.”

“And that means we have to not only question the world as it is, and stand up for those African-Americans who haven’t been so lucky — because, yes, you’ve worked hard, but you’ve also been lucky. . . . People who have been successful and don’t realize they’ve been lucky. That God may have blessed them; it wasn’t nothing you did. So don’t have an attitude. But we must expand our moral imaginations to understand and empathize with all people who are struggling, not just black folks who are struggling — the refugee, the immigrant, the rural poor, the transgender person, and yes, the middle-aged white guy who you may think has all the advantages, but over the last several decades has seen his world upended by economic and cultural and technological change, and feels powerless to stop it.”

[Three]. “You have to go through life with more than just passion for change; you need a strategy. . . .Not just awareness, but action. Not just hashtags, but votes.”

“[C]hange requires more than righteous anger. It requires a program, and it requires organizing. . . . I’m so proud of the new guard of black civil rights leaders who understand this. It’s thanks in large part to the activism of young people like many of you, from Black Twitter to Black Lives Matter, that America’s eyes have been opened — white, black, Democrat, Republican — to the real problems, for example, in our criminal justice system.”

“But to bring about structural change, lasting change, awareness is not enough. It requires changes in law, changes in custom. . . . Passion is vital, but you’ve got to have a strategy.”

“And your plan better include voting — not just some of the time, but all the time. It is absolutely true that 50 years after the Voting Rights Act, there are still too many barriers in this country to vote. There are too many people trying to erect new barriers to voting. This is the only advanced democracy on Earth that goes out of its way to make it difficult for people to vote. And there’s a reason for that. There’s a legacy to that.”

“Even if we dismantled every barrier to voting, that alone would not change the fact that America has some of the lowest voting rates in the free world. . . . [J]ust vote. It’s math. If you have more votes than the other guy, you get to do what you want. It’s not that complicated.”

“And you don’t have excuses. You don’t have to guess the number of jellybeans in a jar or bubbles on a bar of soap to register to vote. You don’t have to risk your life to cast a ballot. Other people already did that for you. Your grandparents, your great grandparents might be here today if they were working on it. What’s your excuse? When we don’t vote, we give away our power, disenfranchise ourselves — right when we need to use the power that we have; right when we need your power to stop others from taking away the vote and rights of those more vulnerable than you are — the elderly and the poor, the formerly incarcerated trying to earn their second chance.”

“So you got to vote all the time, not just when it’s cool, not just when it’s time to elect a President, not just when you’re inspired. It’s your duty. . . . That’s how we change our politics — by electing people at every level who are representative of and accountable to us. It is not that complicated. Don’t make it complicated.”

And finally, change requires more than just speaking out — it requires listening, as well. In particular, it requires listening to those with whom you disagree, and being prepared to compromise.”

“[Y]ou need allies in a democracy. That’s just the way it is. It can be frustrating and it can be slow. But history teaches us that the alternative to democracy is always worse. That’s not just true in this country. . . . Go to any country where the give and take of democracy has been repealed by one-party rule, and I will show you a country that does not work.”

“And democracy requires compromise, even when you are 100 percent right. This is hard to explain sometimes. You can be completely right, and you still are going to have to engage folks who disagree with you. If you think that the only way forward is to be as uncompromising as possible, you will feel good about yourself, you will enjoy a certain moral purity, but you’re not going to get what you want. And if you don’t get what you want long enough, you will eventually think the whole system is rigged. And that will lead to more cynicism, and less participation, and a downward spiral of more injustice and more anger and more despair. And that’s never been the source of our progress. That’s how we cheat ourselves of progress.”

“But . . . [those who participated in the political process] made things better. And you know what, I will take better every time. I always tell my staff — better is good, because you consolidate your gains and then you move on to the next fight from a stronger position.”

“Another Howard alum, Zora Neale Hurston, once said: ‘Nothing that God ever made is the same thing to more than one person.’ Think about that. That’s why our democracy gives us a process designed for us to settle our disputes with argument and ideas and votes instead of violence and simple majority rule.”

“Engage. If the other side has a point, learn from them. If they’re wrong, rebut them. Teach them. Beat them on the battlefield of ideas. And you might as well start practicing now, because one thing I can guarantee you — you will have to deal with ignorance, hatred, racism, foolishness, trifling folks. I promise you, you will have to deal with all that at every stage of your life. That may not seem fair, but life has never been completely fair. Nobody promised you a crystal stair. And if you want to make life fair, then you’ve got to start with the world as it is.”

“James Baldwin once wrote, ‘Not everything that is faced can be changed, but nothing can be changed until it is faced.’”

“Graduates, each of us is only here because someone else faced down challenges for us. We are only who we are because someone else struggled and sacrificed for us. . . . [T]hat is the story of America. A story whispered by slaves in the cotton fields, the song of marchers in Selma, the dream of a King in the shadow of Lincoln. The prayer of immigrants who set out for a new world. The roar of women demanding the vote. The rallying cry of workers who built America. And the GIs who bled overseas for our freedom.”

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

[1] Holston, Obama Embodies Blackness, Confidence, Hope at Howard University’s 148^th Commencement, The Hilltop (May 7, 2016).

[2] White House, Remarks by the President at Howard University Commencement Ceremony (May 7, 2016).

U.S. Supreme Court Invalidates Key Provision of Voting Rights Act of 2006

As widely reported, the U.S. Supreme Court in Shelby County v. Holder recently held unconstitutional a key provision of the Voting Rights Act of 2006.[1]

That provision, section 4, which was part of the original statute enacted in 1965, established a formula to determine which states were subject to pre-clearance by the U.S. Department of Justice or a three-judge federal district court of any changes to the state’s voting procedures. Such pre-clearance approval could be obtained only if the proposed change was shown to have neither “the purpose [nor] the effect of denying or abridging the right to vote on account of race or color.”

Section 4’s formula, as amended in 1975, established as “covered jurisdictions” those States or political subdivisions that had maintained a test or device (literacy or knowledge tests, good moral character requirements, vouchers from registered voters, providing English-only voting material s in places where over 5% of voting-age citizens spoke a language other than English) as a prerequisite to voting as of November 1, 1972, and had less than 50% voter registration or turnout in the 1972 presidential election.

Majority Opinion

The opinion for the Court by Chief Justice John Roberts (joined by Justices Scalia, Kennedy, Thomas and Alito) held that this formula imposed current burdens on the covered jurisdictions that were not justified by current needs. Section 4, therefore, violated basic principles of equal state sovereignty or autonomy over voting and was unconstitutional. This conclusion was reached even though the Chief Justice acknowledged that “voting discrimination still exists.”

The fundamental factual premise of the opinion was the assertion that the U.S. had significantly changed in racial discrimination in voting since 1965. As the Chief Justice said, “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”[2]

Dissenting Opinion

Justice Ginsburg, who was joined by Justices Breyer, Sotomayor and Kagan, issued a stinging dissenting opinion.

She emphasized that the Fifteenth Amendment to the Constitution granted to Congress, not the courts, the power to enact legislation to enforce the Amendment’s ban on racial discrimination in voting. Moreover, the Supreme Court itself repeatedly has held that Congress’ judgment on such matters warrants “substantial deference” and that congressional power is “at its height” when it so acts.

As a result, the proper question for the courts is whether Congress had employed “rational means” in re-enacting section 4 as part of the 2006 Act. According to the dissenting opinion, section 4 meets that test. There was abundant evidence of continued racial discrimination in voting before Congress when it adopted the 2006 Act, and Congress acted with “great care and seriousness” in so doing.

Indeed, Justice Ginsburg stressed, the formula in section 4 is subject to statutory provisions “allowing jurisdictions to ‘bail out’ of preclearance, and for court-ordered “bail ins.” These mechanisms were seen by Congress as “effective means of adjusting the [Act’s] coverage over time.” Therefore, the dissent asserted it is erroneous for the Court’s majority to see the Act as “static, unchanged since 1965. Congress designed the [statute] to be a dynamic statute, capable of adjusting to changing circumstances.”

In short, the dissent says, “Hubris is a fit word for today’s demolition of the [statute].” The majority of the Court “errs egregiously by overriding Congress’ decision.”

Conclusion

The key failure of the majority opinion for me is its narrow focus on the coverage formula in section 4 instead of looking at how the formula works in the statute as a whole. As Justice Ginsburg and previously the D.C. Circuit emphasized, the coverage formula has to be seen with the statutory mechanisms for adjusting coverage to new circumstances through the bail-in or bailout provisions. It is dynamic and capable of adjusting to new circumstances.

Indeed, the Supreme Court did just that in 2009 in Northwest Austin Municipal Utility District No. One v. Holder. The Court’s opinion by Chief Justice Roberts provided a broad reading of the bail out provision to allow the political subdivision in the case to bailout from coverage under sections 4 and 5.

[1] The Supreme Court opinions in Shelby County are available online. Prior posts have discussed the original Voting Rights Act of 1965, the Voting Rights Act of 2006, a prior Supreme Court decision on the latter statute (Northwest Austin), the D.C. Circuit’s decision in Shelby County and the recent Supreme Court oral argument in that case.

[2] Justice Thomas issued a concurring opinion that section 5 of the Act was unconstitutional as well.

U.S. Supreme Court Shows Unjustified Hostility to the Voting Rights Act of 2006

On February 27, 2013, the U.S. Supreme Court heard oral arguments in Shelby County, Alabama v. Holder, No. 12-96, which raises the following issue:

“Whether Congress’ decision in 2006 to reauthorize [for 25 years] Section 5 of the Voting Rights Act [of 1965] under the pre-existing coverage formula of Section 4(b) of [that] Act [requiring certain states to obtain preclearance from the U.S. Department of Justice or a special federal court for any changes in their election laws] exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.”[1]

As has been frequently reported, during the argument Chief Justice John Roberts and Associate Justices Antonin Scalia, Samuel Alito and Anthony Kennedy asked questions and made comments strongly suggesting that they were prepared to invalidate this statutory provision,[2] a conclusion that already had been reached by Associate Justice Clarence Thomas in a prior case. If this is a correct reading of the recent argument, then there would be at least a 5-4 majority on the Court to declare the provision unconstitutional.

According to Linda Greenhouse, a leading Supreme Court follower, the “goal of [the petitioner] Shelby County and [apparently a majority] . . . on the Supreme Court is to depict Section 5 as an anachronism, a needless cudgel held by the big bad federal government over the head of a transformed South.“

Here are just a couple of examples of that attitude from the argument.

Chief Justice Roberts asked or, as Greenhouse put it, “taunted” the U.S. Government’s lawyer (Solicitor General Donald Verrilli) with the following questions (and Roberts’ own answers) apparently to express Roberts’ belief that Mississippi has a better record than Massachusetts on black voter registration and turnout and that the Voting Rights Act provision at issue is no longer needed and, therefore, unconstitutional:

“Do you know how many submissions there were for preclearance to the Attorney General in 2005?” (Roberts: “3700.”)
“Do you know how many objections the Attorney General lodged?” (Verrilli: “There was one in that year.”)
“[D]o you know which State has the worst ratio of white voter turnout to African American voter turnout?” (Roberts: “Massachusetts.”)
“[W]hat [state] has the best, where African American turnout actually exceeds white turnout?” (Roberts: “Mississippi.”)
“Which State has the greatest disparity in registration between white and African American?” (Roberts: “Massachusetts. Third is Mississippi, where again the African American registration rate is higher than the white registration rate.”)
“[I]s it the government’s submission that the citizens in the South are more racist than citizens in the North?” (Verrilli: “It is not.”)

Roberts did not identify the source of his statistics, but afterwards the Massachusetts Secretary of State, William F. Galvin, and political scientists speculated that Roberts drew his conclusions from the U.S. Census Bureau’s “The Current Population Survey,” which collects information on voting and registration every other year. This data, however, should not be used in the way that Roberts did because of their large margins of error, as reported by Nina Totenberg of National Public Radio.

Indeed, Secretary Galvin said that Roberts’ assertion about Massachusetts and Mississippi is just plain wrong and that the only way that the Census Bureau source supports Roberts’ assertion is by including Massachusetts’ non-citizen blacks who are not entitled to vote. To do what Roberts did, according to Galvin, is “deceptive” and “a slur on black voters in Massachusetts.”

Nate Silver, the statistician, also criticizes Roberts’ trumpeting these figures about Mississippi and Massachusetts apparently to justify a conclusion that the Voting Rights Act provisions in question are no longer needed and, therefore, unconstitutional.

According to Silver, “If [Roberts] . . . meant to suggest that states covered by Section 5 consistently have better black turnout rates than those that aren’t covered by the statute, then his claim is especially dubious.” Moreover, says Silver, it is outright fallacious to conclude from this simple comparison of two states, however flawed the data, that the provisions of section 5 of the Voting Rights Act and the formula in section 4(b) are no longer needed. For example, such data say nothing about whether whatever gains have been made in racial minority voting “might be lost if the Section 5 requirements were dropped now.”

I also fault the Chief Justice for focusing on only one small piece of evidence, however flawed or subject to qualification. Instead, he should be focusing on fundamental principles of judicial restraint as repeatedly proclaimed by the U.S. Supreme Court itself and as cited by the D.C. Circuit in its opinion in this case.

These precedents emphasize that “Congress’s laws are entitled to a ‘presumption of validity’” and that “when Congress acts pursuant to its enforcement authority under the Reconstruction Amendments [including the Fifteenth Amendment], its judgments about ‘what legislation is needed . . . are entitled to much deference.‘“ Such deference is paid “‘out of respect for [Congress’] . . . authority to exercise the legislative power,’” and in recognition that Congress “is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.” (Citations omitted.)[3]

Associate Justice Scalia also interrupted Solicitor General Verrilli to make this long statement:

“This Court doesn’t like to get involved . . . in racial questions such as this one. It’s something that can be . . . left to Congress.
“The problem here, however, is . . . that the initial enactment of this legislation in a time when the need for it was so much more abundantly clear . . . in the Senate, . . . it was double-digits against it. And that was only a 5-year term. Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it.
“And this last enactment [in 2006], not a single vote in the Senate against it. And the House is pretty much the same.
“Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is . . . very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity . . . unless a court can say it does not comport with the Constitution.
“You have to show, when you are treating different States differently, that there’s a good reason for it. That’s . . . the concern that those of us . . . who have some questions about this statute have. It’s . . . a concern that this is not the kind of a question you can leave to Congress.
“There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose . . . votes if they do not reenact the Voting Rights Act.
“Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?”

These remarks are shocking and totally inconsistent with the Court’s long-established principles of judicial restraint mentioned above and with Justice Scalia’s persistently stated views about judicial interpretation of statutes.

Indeed, Scalia’s remarks provoked the Washington Post’s Editorial Board to proclaim that Scalia was in “contempt of Congress.” The editorial concluded with these words, “Congress, after careful review, came to an overwhelming conclusion that protection of the franchise in America is much improved but not guaranteed, especially in certain areas. We heard in . . . [the Supreme Court] argument no grounds for the court to claim superior wisdom on that question.”

Conclusion

What is your opinion on how the Voting Rights Act issue should be resolved? Some argue for holding that provision unconstitutional.[4] Others agree with me that the provision should be upheld.[5]

I went to the University of Chicago Law School before Mr. Scalia was on the faculty, and I have never met him. By all reports, he is a brilliant man who is gracious and funny in social settings. But his comments in this and other Court arguments along with some of his opinions lead me to believe that life tenure for Supreme Court Justices and perhaps other federal judges causes at least some of them to believe that they are omniscient.

A possible solution to such arrogance, as I suggested in a comment to a prior post, is to amend the U.S. Constitution to impose a term limit on U.S. Supreme Court Justices and perhaps other federal judges. All 50 states in the U.S. and all major nations have age or term limits for high-court judges. The International Criminal Court limits its judges to one term of nine years. Such limits are not seen as restrictions on the necessary independence of the judiciary.

The U.S. Constitution does not specifically grant life tenure to the justices or other federal judges. The Constitution merely says, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour . . . .” Paul Carrington, a Duke University law professor, has suggested that the “good Behaviour” provision was not intended to provide life-time appointments and that term limits could be imposed by statute.

[1] This issue was phrased by the Supreme Court itself in granting review of the case. Previous posts have reviewed the Voting Rights Act of 1965; the Voting Rights Act of 2006; the prior Supreme Court case regarding the latter statute (Northwest Austin Municipal Utility District No. One v. Holder); and the decision of the U.S. Court of Appeals for the District of Columbia Circuit in the Shelby County case. The transcript of the recent Supreme Court arguments in Shelby County is available online as are the petitioner’s brief, the respondent’s brief for the U.S. Government and the reply brief for the petitioner in the case. Other briefs in the case for three intervenors, 19 amici curiae (friends of the court) supporting the petitioner and 28 amici curiae supporting the U.S. Government can also be found on the web. Excellent commentaries about the case are available on the respected scotusblog.

[2] E.g., Liptak, Voting Rights Law Draws Skepticism from Justices, N.Y. Times (Feb. 27, 2013); Gerstein, 5 Takeaways from the Voting Rights Act arguments, Politico (Feb. 27, 2013).

[3] Roberts’ hostility to the Voting Rights Act apparently goes back to 1981 when as a young lawyer in the Department of Justice he was working on Reagan Administration efforts to weaken the Voting Rights Act.

[4] E.g., Blum, The Supreme Court Can Update the Obsolete Voting Rights Act, W.S.J. (Feb. 24, 2013); Room for Debate: Is the Voting Rights Act Still Needed?, N.Y. Times (Feb. 27, 2013) (Shapiro; Pilder); Savage, Decision on Voting Law Could Limit Oversight, N.Y. Times (Feb. 28, 2013); Will, The Voting Rights Act stuck in the past, Wash. Post (Mar. 1, 2013).

[5] E.g., Room for Debate: Is the Voting Rights Act Still Needed?, N.Y. Times (Feb. 27, 2013) (Wydra; Charles & Fuentes-Rohwer; Garza; Smith), supra; Savage, Decision on Voting Law Could Limit Oversight, N.Y. Times (Feb. 28, 2013), supra.

The D.C. Circuit’s Decision Upholding the Validity of the Voting Rights Act of 2006

On February 27, 2013, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of an important provision in the Voting Rights Act of 2006. That provision imposes a requirement in section 5 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.

Before we discuss that argument, we will review the decision that was the subject of that argument: the U.S. Court of Appeals for the D.C. Circuit’s decision in Shelby County, Alabama v. Holder upholding, 2 to 1, the constitutionality of that statute and, therefore, affirming the trial court’s judgment to the same effect.[1]

Judge Thomas Griffith — Judge Thomas B. Griffith

The opinion for the majority in the Circuit Court was written by Judge David S. Tatel, a President Clinton appointee in 1994 and a University of Chicago Law School classmate and friend of mine. He was joined by Circuit Judge Thomas B. Griffith, an appointee of President George W. Bush in 2005, while the dissenter was Circuit Judge Stephen F. Williams, an appointee in 1994 by President Reagan.

Opinion of the Circuit Court

The D.C. Circuit stressed that it was “bound by fundamental principles of judicial restraint” as repeatedly proclaimed by the U.S. Supreme Court. These precedents emphasize that “Congress’s laws are entitled to a ‘presumption of validity’” and that “when Congress acts pursuant to its enforcement authority under the Reconstruction Amendments [including the Fifteenth Amendment], its judgments about ‘what legislation is needed . . . are entitled to much deference.‘“ Such deference is paid “‘out of respect for [Congress’] . . . authority to exercise the legislative power,’”and in recognition that Congress ”‘is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.’” (Citations omitted.)

Indeed, the Circuit Court quoted the Supreme Court’s opinion in deciding a prior case about this very statute when that Court emphasized that “judging the constitutionality of an Act of Congress is `the gravest and most delicate duty that [a court] is called on to perform,’'” and that “[t]he Fifteenth Amendment empowers `Congress,’ not the Court, to determine in the first instance what legislation is needed to enforce it.”

These long-standing principles of judicial restraint, I believe, are even more relevant and important, when Congress adds congressional findings of fact to the statute itself, as it did in the Voting Rights Act of 2006.

The D.C. Circuit then addressed the two concerns or questions about the Voting Rights Act of 2006 that the Supreme Court had raised in the Northwest Austin case.

First, are the current burdens imposed by section 5 “justified by current needs”?

Even though there has been significant progress in combatting racial discrimination in voting, the D.C. Circuit stressed that “Congress [had] found that this progress did not tell the whole story.

It documented ‘continued registration and turnout disparities’ in both Virginia and South Carolina.” In addition, “although the number of African Americans holding elected office had increased significantly, they continued to face barriers to election for statewide positions. Congress found that not one African American had yet been elected to statewide office in Mississippi, Louisiana, or South Carolina. In other covered states, “`often it is only after blacks have been first appointed to a vacancy that they are able to win statewide office as incumbents.'”

The D.C. Circuit also noted that “Congress considered other types of evidence that, in its judgment, ‘show[ed] that attempts to discriminate persist and evolve, such that Section 5 is still needed to protect minority voters in the future.’ It heard accounts of specific instances of racial discrimination in voting. It heard analysis and opinions by experts on all sides of the issue.”

Congress considered six distinct categories of evidence, according to the D.C. Circuit: “(1) [U.S.] Attorney General objections issued to block proposed voting changes that would, in the Attorney General’s judgment, have the purpose or effect of discriminating against minorities; (2) ‘more information requests’ issued when the Attorney General believes that the information submitted by a covered jurisdiction is insufficient to allow a preclearance determination; (3) successful lawsuits brought under section 2 of the Act; (4) federal observers dispatched to monitor elections under section 8 of the Act; (5) successful section 5 enforcement actions filed against covered jurisdictions for failing to submit voting changes for preclearance, as well as requests for preclearance denied by the United States District Court for the District of Columbia; and (6) evidence that the mere existence of section 5 deters officials from even proposing discriminatory voting changes.”

Finally, said the D.C. Circuit, “Congress heard evidence that case-by-case section 2 litigation was inadequate to remedy the racial discrimination in voting that persisted in covered jurisdictions.”

The Circuit court then carefully reviewed the legislative record and concluded that it contained “sufficient probative evidence from which Congress could reasonably conclude that racial discrimination in voting in covered jurisdictions is so serious and pervasive that section 2 litigation remains an inadequate remedy.”

Second, does the congressional record support the requisite ‘showing that the statute’s disparate geographic coverage is sufficiently related to the problem that it targets?

In addressing this issue, the Circuit court emphasized that the statute’s disparate geographic coverage depended not only on section 4(b)’s formula, but on the statute as a whole, including its mechanisms for bail-in and bailout. Therefore, for this court the question was whether the statute as a whole, not just the section 4(b) formula, ensures that jurisdictions subject to section 5 are those in which unconstitutional voting discrimination is concentrated.

After reviewing in detail the congressional record on this issue and the total structure of the statute, including bailout and bail-in, the D.C. Circuit concluded that the statute “continues to single out the jurisdictions in which discrimination is concentrated.”

Dissenting Opinion

The dissenting opinion of Judge Williams concluded that the formula in section 4(b) of the statute was unconstitutional because the significant burdens it imposed on “covered jurisdictions” were not “congruent and proportional” to the problems of racially discriminatory voting laws that it targeted.

—————————-

[1] Prior posts examined the original Voting Rights Act of 1965, the Voting Rights Act of 2006 and the prior U.S. Supreme Court case regarding the latter statute.

Prior U.S. Supreme Court Case Regarding the Voting Rights Act of 2006

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] That provision imposes a requirement in section 5 for certain states to obtain pre-clearance from a special federal court or the U.S. Department of Justice for any changes in their election laws.

Prior posts have reviewed the original Voting Rights Act of 1965 and its extension in the Voting Rights Act of 2006. Before we discuss the recent Supreme court argument, we now look at another of its predicates: the previous Supreme Court decision regarding the Voting Rights Act of 2006: Northwest Austin Municipal Utility District No. One v. Holder. [2]

Opinion of the Court

The opinion for the Court was written by Chief Justice John Roberts, who was joined by seven Associate Justices (Stevens, Scalia, Kennedy, Souter, Ginsburg, Breyer and Alito).

The Roberts opinion interpreted the statute as reauthorized in 2006 to allow any covered jurisdiction, including the utility district bringing suit in that case, to seek bailout, thus avoiding the need to resolve whether the 25-year reauthorization in 2006 was constitutional.

As a result, the rest of the opinion’s extensive discussion of constitutional concerns over the 2006 statute technically are dicta, but the Supreme court’s dicta are obviously important for the lower federal courts and legal observers to see which way the winds are blowing.

The opinion paid at least verbal homage to the longstanding legal principles that “judging the constitutionality of an Act of Congress is ‘the gravest and most delicate duty that this Court is called on to perform’” and that “Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States.’” Moreover, Roberts emphasized that “the Fifteenth Amendment empowers ‘Congress,’ not the Court, to determine in the first instance what legislation is needed to enforce it.”

Roberts acknowledged that in 1965 when the original statute was passed, “unconstitutional discrimination was rampant and the ‘registration of voting-age whites ran roughly 50 percentage points or more ahead’ of black registration in many covered States” and that the Court had upheld the constitutionality of the original statute and its extensions through 2006.

However, Roberts left the distinct impression that at least he thought that since 2006 the work of abolishing racial discrimination in voting was over.

He said, “Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Moreover, “many of the first generation barriers to minority voter registration and voter turnout that were in place prior to the [original Voting Rights Act] have been eliminated.” The “registration gap between white and black voters is in single digits in the covered States; in some of those States, blacks now register and vote at higher rates than whites. Similar dramatic improvements have occurred for other racial minorities.”

“These improvements are no doubt due,” the opinion stated, “in significant part to the [original] Voting Rights Act itself [as extended through 2006] , and stand as a monument to its success.”

Almost offhandedly the opinion conceded, “It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act.”

And the opinion did say that “Congress amassed a sizable record in support of its decision to extend the preclearance requirements, a record the District Court determined ‘document[ed] contemporary racial discrimination in covered states.’ The District Court also found that the record “demonstrat[ed] that section 5 prevents discriminatory voting changes’ by ‘quietly but effectively deterring discriminatory changes.’”

But Roberts did not refer to, quote or discuss the extensive congressional findings in the Voting Rights Act itself that fighting voter racial discrimination was not finished.

The Court’s opinion identified two “serious . . . questions” about section 5’s continued constitutionality, namely, whether the “current burdens” it imposes are “justified by current needs,” and whether its “disparate geographic coverage is sufficiently related to the problem that it targets.”

These burdens, said the opinion, were the “federal intrusion into sensitive areas of state and local policymaking.” Section 5, it continued, “goes beyond the prohibition of the Fifteenth Amendment by suspending all changes to state election law—however innocuous—until they have been precleared by federal authorities in Washington, D. C. The preclearance requirement applies broadly, and in particular to every political subdivision in a covered State, no matter how small.”

The second problem identified by Roberts stemmed from the statue’s differentiation “between the States, despite our historic tradition that all the States enjoy “equal sovereignty.” Such “distinctions can be justified in some cases. But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.”

Opinion of Justice Clarence Thomas

Associate Justice Clarence Thomas filed a separate opinion in this case, concurring in the judgment in part and dissenting in part.

Thomas said, “the Court’s statutory decision does not provide appellant with full relief” and, therefore, he concludes, “it is inappropriate to apply the constitutional avoidance doctrine in this case. I would therefore decide the constitutional issue presented and hold that §5 exceeds Congress’ power to enforce the Fifteenth Amendment.” The latter conclusion was based upon his assertion that there was a “lack of current evidence of intentional discrimination with respect to voting.”

————————

[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] Another predicate to the recent Supreme court argument will be discussed in a future post: the 2012 decision of the U.S. Court of Appeals for the D.C. Circuit that is the subject of the recent argument in the Supreme Court (Shelby County, Alabama v. Holder).

The Voting Rights Act of 2006

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 for certain states to obtain pre-clearance from a special federal court or the U.S. Department of Justice for any changes in their election laws.[2]

Before we discuss that argument, we will look at the Voting Rights Act of 2006.[3]

Its stated Purpose in Section 2(a) was “to ensure that the right of all citizens to vote, including the right to register to vote and cast meaningful votes, is preserved and protected as guaranteed by the Constitution.” The last reference, of course, included the Constitution’s Fifteenth Amendment: “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.”

The 2006 statute did that by reauthorizing and extending for 25 years (until 2032) the following essential provisions of the original Voting Rights Act of 1965:

Section 2 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.” 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.
Section 5 (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.” 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.”
Such approval or 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.”
The “covered jurisdictions” subject to section 5 were identified in section 4(b), as subsequently modified, as any state or political subdivision of a state that “maintained a voting test or device as of November 1, 1972, and had less than 50% voter registration or turnout in the 1972 presidential election.”
Upon satisfying certain criteria a state or other jurisdiction could obtain “bailout” from section 5 or be subject to “bail-in” to such coverage.

The Voting Rights Act of 2006 was overwhelmingly adopted by the Congress: 98 to 0 in the Senate and 390 to 33 (with 9 not voting) in the House. In doing so, the Congress acted on the basis of a legislative record over 15,000 pages in length, including statistics, findings by courts and the Justice Department, and first-hand accounts of discrimination.[4]

Given this extensive record before Congress, Section 2(b) of the Voting Rights Act of 2006 contains the following extensive congressional Findings:

“(1) Significant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices. This progress is the direct result of the Voting Rights Act of 1965.

“(2) However, vestiges of discrimination in voting continue to exist as demonstrated by second generation barriers constructed to prevent minority voters from fully participating in the electoral process.

“(3) The continued evidence of racially polarized voting in each of the jurisdictions covered by the expiring provisions of the Voting Rights Act of 1965 demonstrates that racial and language minorities remain politically vulnerable, warranting the continued protection of the Voting Rights Act of 1965.

“(4) Evidence of continued discrimination includes—

“(A) the hundreds of objections interposed, requests for more information submitted followed by voting changes withdrawn from consideration by jurisdictions covered by the Voting Rights Act of 1965, and section 5 enforcement actions undertaken by the Department of Justice in covered jurisdictions since 1982 that prevented election practices,such as annexation, at-large voting, and the use of multimember districts, from being enacted to dilute minority voting strength;

“ (B) the number of requests for declaratory judgments denied by the United States District Court for the District of Columbia;

“(C) the continued filing of section 2 cases that originated in covered jurisdictions; and

“(D) the litigation pursued by the Department of Justice since 1982 to enforce sections 4(e), 4(f)(4), and 203 of such Act to ensure that all language minority citizens have full access to the political process.

“(5) The evidence clearly shows the continued need for Federal oversight in jurisdictions covered by the Voting Rights Act of 1965 since 1982, as demonstrated in the counties certified by the Attorney General for Federal examiner and observer coverage and the tens of thousands of Federal observers that have been dispatched to observe elections in covered jurisdictions.

“(6) The effectiveness of the Voting Rights Act of 1965 has been significantly weakened by the United States Supreme Court decisions in Reno v. Bossier Parish II and Georgia v. Ashcroft, which have misconstrued Congress’ original intent in enacting the Voting Rights Act of 1965 and narrowed the protections afforded by section 5 of such Act.

“(7) Despite the progress made by minorities under the Voting Rights Act of 1965, the evidence before Congress reveals that 40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.

“(8) Present day discrimination experienced by racial and language minority voters is contained in evidence, including the objections interposed by the Department of Justice in covered jurisdictions; the section 2 litigation filed to prevent dilutive techniques from adversely affecting minority voters; the enforcement actions filed to protect language minorities; and the tens of thousands of Federal observers dispatched to monitor polls in jurisdictions covered by the Voting Rights Act of 1965.

“(9) The record compiled by Congress demonstrates that, without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.”

On July 27, 2006, President George W. Bush signed this statute in a ceremony on the South Lawn of the White House (as shown in the photo to the left). Attending the event were Attorney General Alberto Gonzalez and other members of the Cabinet, the leaders of the United States Senate and House of Representatives, representatives of the Fannie Lou Hamer family, representatives of the Rosa and Raymond Parks Institute, members of the Martin Luther King, Jr. family and civil rights leaders, including Dr. Dorothy Height, Julian Bond (the Chairman of the NAACP), Bruce Gordon, Reverend Lowery, Marc Morial, Juanita Abernathy, Jesse Jackson, Al Sharpton and Dr. Benjamin and Frances Hooks.

On that occasion President Bush said, “By reauthorizing this act, Congress has reaffirmed its belief that all men are created equal; its belief that the new founding started by the signing of the [Voting Rights Act of 1965] . . . by President Johnson is worthy of our great nation to continue.”

That original statute, President Bush continued, “rose from the courage shown on a Selma bridge one Sunday afternoon in March of 1965 . . . [when] African Americans . . . marched across the Edmund Pettus Bridge in a protest intended to highlight the unfair practices that kept them off the voter rolls.The brutal response [to the marchers that day] . . . stung the conscience of a slumbering America. . . . One week after Selma, President Lyndon Johnson took to the airwaves to announce that he planned to submit legislation that would bring African Americans into the civic life of our nation. Five months after Selma, he signed the Voting Rights Act [of 1965] into law in the Rotunda of our nation’s capitol.”

President Bush recognized that in the “four decades since the Voting Rights Act was first passed, we’ve made progress toward equality, yet the work for a more perfect union is never ending.” By signing the Voting rights Act of 2006, President Bush concluded, we “renew a bill that helped bring a community on the margins into the life of American democracy. My administration will vigorously enforce the provisions of this law, and we will defend it in court.”

———————–

[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, Pub. L. 109-246, 120 Stat. 577 (2006).

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

[3] A prior post discussed the original Voting Rights Act of 1965. Other posts will discuss two other predicates for the recent Supreme Court argument: the previous Supreme Court case 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 that is the subject of the that argument (Shelby County, Alabama v. Holder).

[4] The 2006 Act also overruled two Supreme Court decisions interpreting the statute.

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”

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.