In 1965, the U.S. Congress made a seismic decision. Faced with the disenfranchisement of black voters on the one hand, and a Constitutional mandate to maintain equal sovereignty among the states on the other, Congress decided that jurisdictions with histories of racial discrimination at the polls should be compelled to seek “preclearance” from federal authorities any time they wished to change their voting procedures. The preclearance process required covered jurisdictions to prove that the proposed changes were not intended to discriminate against voters based on race. The Voting Rights Act was signed into law on August 6, 1965 and has been reauthorized four times. Each time, the Executive has approved it and the Supreme Court has upheld it against challenges.
Today marks the fiftieth anniversary of the Voting Rights Act. But with the 2016 elections just over a year away, the passing of the VRA has taken on new meaning. In June of 2013, a 5-4 majority of the Supreme Court invalidated key provisions of the VRA. In his majority opinion, Chief Justice John Roberts declared the section of the Act requiring “preclearance” from certain states and districts unconstitutional. This ruling allows these jurisdictions to make changes in voting laws with greater ease. Many have already done so, and some of the results suggest that we may have more reasons to mourn the passing of the VRA than to celebrate its passage.
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Why did the Supreme Court overturn a key section of an act of Congress? According to Chief Justice Roberts, conditions had changed. Concrete improvements in registration and turnout among minority voters led Roberts to conclude that “the Nation is no longer divided along [racial] lines, yet the Voting Rights Act continues to treat it as if it were.” Roberts acknowledges that “these improvements are in large part because of the Voting Rights Act,” but he maintains that “current conditions” must be the basis on which the Court determines the constitutionality of the Act.
Roberts’s insistence on “current conditions” (a phrase he uses four times) betrays a misunderstanding of the irreducibly historical nature of race. Those who, like Roberts, have an ahistorical view of race see race as a neutral descriptive category and the law as racially neutral. Legal scholar Neil Gotanda calls this a “formal-race” view. A formal-race view does not see people of different races as intrinsically inferior or superior, but it does fail to note how the law shapes racial categories and confers “superior” and “inferior” statuses. The key feature of formal-race, according to Gotanda, is that it envisions race as “unconnected to the historical reality of black oppression.” This “unconnected” view is evident in Roberts’s failure to see a “logical connection” between conditions in 1965 and conditions in 2013. Rebuking Congress for its reauthorization of the VRA in 2006, he writes: “Congress did not use the record it compiled to shape a coverage formula grounded in current conditions. It instead reenacted a formula based on forty-year-old facts having no logical relation to the present day.”
Formal-race holds that, all other things being equal, racism consists of unequal treatment based on skin color. Standing in contrast to it is what Gotanda calls “historical-race.” This is the view that all things are not equal, because of how we have treated each other—specifically, because of how racial differences have been created and enforced over time by individuals, institutions, and laws.
All are not equal before the law, or the VRA would not have been necessary in the first place. The Constitution did not recognize black people as full persons after Independence, let alone enfranchise black voters after Emancipation—and so Congress ratified the 15th Amendment in 1870. For another hundred years, laws in many states continued to privilege white voters—creating the need for the VRA. Now that great gains have been made as a result of the VRA, a majority of the Supreme Court believes we can revert to a “neutral” legal view—the same view that disenfranchised minorities for decades.
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With its teeth pulled, the VRA can no longer protect the rights of citizens who are likely to be disenfranchised, in the places where that is most likely to happen. Voting rights were undermined even during the VRA era by gerrymandering, at-large voting, and annexation. But now states with histories of disenfranchisement can take more direct aim at voting rights without oversight from the Department of Justice. The loss of preclearance has removed an effective deterrent against harmful election laws and rendered challenges to discriminatory voting laws more difficult.
Within hours of the 2013 decision, the Texas State Legislature passed a Voter ID law that had previously been blocked by the VRA. Within two months, the General Assembly in my own state of North Carolina had proposed, debated, and passed new voting laws, which the governor duly signed: tightening rules on voter ID, shortening the early-voting window, and doing away with same-day registration.
Had these guidelines been simple protections against voter fraud, as proponents maintain, surely they would have withstood the preclearance process under the VRA. A complaint filed against North Carolina by federal authorities notes that “African Americans [had] disproportionately utilized” early voting, especially the first seven days of it, during the November 2008 and 2012 elections—elections in which the percentage of black voters surpassed that of white voters for the first time in the state’s history. Now North Carolina is experiencing a partisan maelstrom that has made its way to a federal court. The path of appeals may lead back to the Supreme Court in the end.
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Since the key provision of the VRA has been rendered ineffectual, we must watch for infringements of voting rights in states with troubled histories. Some voters will not have access to polling places that have been gerrymandered out of reach. Some will lack approved photo IDs. Others will be unable to get time off during shortened early-voting windows. Still others will be turned away at the polls because they can no longer register and vote on the same day.
The strength of the VRA was that it made no claims to neutrality. All were not equal before it: The vulnerable were privileged by it, the powerful made accountable. We must consider the gutting of the VRA another chapter in the struggle over voting rights in the United States, and we must remember it as the logical antecedent of wherever we find ourselves next.
Matthew Mullins is Assistant Professor of English and History of Ideas at Southeastern Baptist Theological Seminary.