As Americans commemorate the 50th anniversary of the March on Washington, one of the key pieces of legislature accredited with advancing civil rights lingers in limbo.
In April, a Supreme Court split along ideological and partisan lines voted 5-4 to strip the government of its most potent tool to stop voting bias: the requirement in the Voting Rights Act that all or parts of 15 states with a history of discrimination in voting, mainly in the South, get Washington’s approval before changing the way they hold elections.
“Virtually everyone who has thought of this characterizes the Voting Rights Act as the most successful piece of civil rights legislation ever enacted,” said Charles Bullock, political science professor at the University of Georgia.
“In Georgia, in 1962, prior to the adoption of the Voting Rights Act, only about 27 percent of adult blacks in Georgia were registered to vote. Now registration rates are pretty much identical to whites, and have been for awhile,” he said. “When that legislation was passed in Georgia there were three black offices holders. Now, there are thousands. It’s had a dramatic impact.”
The decision was deplored by voting access activists and largely applauded by the states now free from nearly 50 years of intense federal oversight of their elections.
Bullock explained how Section 4 and Section 5, gutted by the decision, affected voting policy.
“For some states, and Georgia is among those, any time that the state or local government made any kind of changes that in any way impacted elections, they had to get the approval of the federal government. One was an administrative approach. With that, the proposed change would have to be submitted to the attorney general, and that office would have 60 days to decide whether the proposal was likely to be discriminatory. If not, it would be rejected,” Bullock explained
The second was a judicial approach, he said.
“The jurisdiction could go to Washington, D.C., in the district court, seeking a declaratory judgment that the proposed change was not discriminatory,” Bullock said.
“Section 4 determined who would be covered by Section 5, the trigger for federal preclearance,” he said. “In the Shelby County case, essentially the Supreme Court has made those unnecessary — no longer do you need to get federal approval.”
“If certain counties were covered as a result of the trigger mechanism, that’s when it had to abide by Section 5, the preclearance. The concept of preclearance wasn’t shuttered, but the trigger resting on that election data was now 49 years ago, and the Supreme Court ruled that wasn’t appropriate.”
The case originated in Shelby County, Ala. Subject to the pre-clearance measures, the county sued U.S. Attorney Eric Holder in federal court, arguing that Sections 4 and 5 of the act were unconstitutional. A federal district judge rejected the argument, ruling in favor of Holder, as did the U.S. Court of Appeals in May 2012.
Willie Mitchell, a Gainesville City Schools board member and past president of the Hall County-Gainesville NAACP, said his concern for voting rights is part of the reason he will be marching on Washington for the anniversary.
“A part of the conversation and a part of the protest is about the Voting Rights Act,” Mitchell said. “The problem I have with that is too many states are coming up with rules and regulations that would deny people the right to vote. To me it’s reminiscent of the old days, when they would do gerrymandering and poll taxes to exclude minorities.”
When the act was crafted in 1965, a locality was covered by Section 4 if less than half the adult population had registered or voted in the 1964 presidential election, or if the precinct had a test or device as a hurdle to vote — and in 1965 most of the South did, Bullock said. Other than the South, a few counties in New York, Michigan, California and Arizona were covered.
It will take congressional action to put Section 4 and Section 5 back into play by re-working the formula.
“If you’re going to continue to have this requirement, which jurisdictions finds onerous, make sure that those requirements deal with where there are actually problems. That’s kind of the argument the court bought, and put the ball back in Congress’ court,” Bullock said.
“What is the problem with making sure that everyone has the right to vote? It’s hard for me to grasp, to think that ... we have achieved and reached our goals, therefore let’s just back off,” Mitchell said in response to those arguments.
Congress approved a 25-year extension of the act in 2006, signed by President George W. Bush, but Bullock described this fight as being in “a different arena.”
“The 2006 renewal was heavily symbolic. It was the Coretta Scott King, Rosa Parks, Fannie Lou Hamer Act — three women who were all significant players in the civil right movement. That made it difficult, uncomfortable to vote against that. Federal judges — they don’t face elections,” he said.
Bullock said the climate of congressional inaction will make swift action on the Voting Rights Act unlikely, especially with the issue being a political hot potato.
“This is far from being the only instance where Congress hasn’t done anything. Congress is on track to have one of its least productive years,” Bullock said. “And the other potential problem is that almost any new standard that Congress would come up with would require preclearance in jurisdictions that have never had it before, which would make it very unpopular.
“For example, based on turnout rates, you’re going to start picking up jurisdictions in Ohio, so you can bet Ohio members of Congress aren’t going to want to vote for that.”
U.S. Rep. Doug Collins, R-Gainesville, representing Georgia’s 9th District, said in a statement in April that it’s a victory for all Americans and urged congressional action.
“Even in the divisive times we find ourselves in right now, Congress must find a way to come together, make smart decisions for the well-being of our citizenry, and rework the current formula to get it right,” the statement said.
A spokeswoman for Collins said this week the congressman could not comment on his specific stance regarding redrawing Voting Rights Act jurisdictions and rules, as he sits on the judiciary committee where possible legislation will be crafted.
At the time it was adopted, the Voting Rights Act struck down measures like poll taxes and literacy tests. Today, different requirements are scrutinized. Some states have already begun to push forward measures that, prior to April, would have been subject to preclearance.
“In North Carolina and Texas, things have changed. Their legislatures were still in session, of course — our legislature has been out since March — but in North Carolina and Texas, both of those legislatures have passed photo ID requirements,” Bullock said.
Georgia passed a photo ID requirement that was approved by the Justice Department in 2007.
“Texas also adopted a different statewide redistricting plan; the plan it adopted in 2011 had been rejected by the federal courts, under Section 5, but with Section 5 no longer enforceable, they went back to the 2011 plan,” Bullock added.
But some parts of the act are still intact, allowing legal means to challenge potentially discriminatory laws and policies.
“Section 2, which got rewritten and given some teeth in the 1982 renewal, made it easier for minorities to challenge existing systems,” Bullock said. “Getting approval under Section 5 doesn’t protect it from a separate lawsuit under Section 2.”
The NAACP has filed suit for the photo ID requirements in North Carolina, shortening of early voting and elimination of same-day registration, passed along political lines.
Bullock explained the rationale for such requirements like photo ID, and Democrats’ response.
“Republicans say we need to have photo ID because there are votes being cast by people who shouldn’t; Democrats’ response is there’s very little evidence of impersonation when people go to vote,” he said. “Furthermore, Democrats say, the effect of requiring a photo ID may be to disproportionately disadvantage voters who are minorities, older people — those are the kind of voters who are more likely to support democratic candidates.”
Mitchell lambasted photo ID requirements as part of an era of new Jim Crow policies.
“We need to make sure there are no hurdles for people who are eligible to vote,” he said. “Some of the photo ID things that they’re talking about — you have some senior people who have never had a picture ID. They’ve been voting for the last 15, 20 years, and all of a sudden you have this rule. They’ve been voting for forever, and all of a sudden they need to be identified.”
He said issues of voter fraud that proponents have cited is an excuse.
“Voter fraud? That’s not the reason. I think it’s just a thing to reverse some of progress we have made as a people,” he said.
Mitchell said activism has to remain steadfast and powerful.
“Some people look and say, ‘It ain’t never going to change,’” he said. “But it’s an ongoing thing. You’ve got to hang in there until you win. ... I don’t know if people will be noticing, but disenfranchised people are speaking out in ways they never did, saying, ‘Hey, look, we need to unite and fight.’ This march, today and tomorrow, gays and lesbians, American Indians, a lot of people who feel like they’ve been disenfranchised are coming together,” he said. “African-Americans have died for that right to vote, been beat up for that right to vote. All we’re asking is — you’ve got the Constitution, the Declaration; I have these rights as an American citizen. Can I exercise that?”