Constitution Daily: A trouble semicentennial remembrance of the Voting Rights Act 

Fifty years ago [last] week, President Lyndon Baines Johnson signed the Voting Rights Act. He then stood up, turned around, and shook the hand of the Rev. Martin Luther King, Jr. That majestic tableau captured the potent links among civil rights protest, King’s indomitable courage, and LBJ’s iron will. These two men seized that era’s opportunities to reconstruct American democracy. They rewrote the rules for voting and elections in the ex-Confederacy. They and the other guests in the room also represented the literally countless men and women who prepared the table for the day’s great change, some by giving their lives.

The Voting Rights Act enforces the 15th Amendment provision that 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.” In doing that, the Act has acquired semi-constitutional status. The Act has been on the books for roughly one-fifth of the time that the Constitution has been in existence. Four Congresses and Presidents have renewed and strengthened its temporary provisions—in 1970, 1975, 1982, and 2006—and they also added new and permanent protections. Not very long ago, it was possible to think of the Voting Rights Act as something like a “super statute”—a statute that is deeply woven into the nation’s political fabric and commands the kind of general respect that the Constitution enjoys.

But kryptonite that weakened the Act came from the Supreme Court in June 2013 in its momentous 5-4 decision, Shelby County v. Holder. The Court corrected—and thereby impaired—the Voting Rights Act Reauthorization Act of 2006. In a briskly written opinion, Chief Justice John Roberts held that Congress unconstitutionally failed during its 2006 renewal to update the “coverage” section of the statute. This was Section 4; at the time of Shelby, this part of the Act defined the jurisdictions that receive special federal scrutiny through an administrative process known as “preclearance.” The Chief Justice emphasized that Congress did not recognize the enormous success of the Voting Rights Act in the covered states. Instead, Congress renewed Section 4 on the same terms that it had used at the last renewal in 1982. The criteria for coverage rested in part on turnout data for the presidential elections of 1964, 1968, and 1972. These were obsolete data. Such coverage indicators no longer described the reality of voting rights in the ex-Confederacy.

Section 4 thus created truly intrusive federal regulation. What was unconstitutional about it was its naked violation of the principle that the states are, in principle, equal and “sovereign.” They are entitled to the presumption that they are free from federal supervision with respect to a core prerogative, such as the making of election law, unless there is compelling reason to nationally supervise some of them and to distinguish some states from others. That reason no longer existed.

Read the full article at Constitution Daily.

Rick Valelly '75 is Claude C. Smith '14 Professor of Political Science at Swarthmore College, where he has taught since 1993. He is the author of the award-winning The Two Reconstructions: The Struggle for Black Enfranchisement (2004), American Politics: A Very Short Introduction (2013), and Radicalism in the States: The American Political Economy and the Minnesota Farmer-Labor Party (1989). His current research focuses on the political development of LGBT rights in the U.S. with a fellowship from the American Council of Learned Societies.