Has the U.S. Supreme Court killed the Voting Rights Act? No—but with Shelby County, Alabama v. Holder, handed down on June 27th, the Court radically demoted the Act’s constitutional meaning. Once seen as a jewel on the crown of the Reconstruction Amendments to the Constitution, the 13th, 14th, and 15th Amendments, it has been reframed by Chief Justice Roberts as simply a sunset statute. The Court resurrected a long-forgotten premise, one that initially informed the Act’s enactment in 1965—that the Act is in principle temporary legislation because ordinarily, indeed quite properly in a federal polity, the states and not the national government regulate voting.
The seeds for the current crisis were sown in 1965, when Congress first framed the Voting Rights Act as emergency, stop-gap legislation. The first extension of the Act in 1970 initiated the Act’s gradual institutionalization. But the Act’s foundational assumption was never completely replaced.
To be sure, everyone knew that some day African-American voting rights would no longer require federal protection. Yet it was taken for granted that the when and the how of such a decision were up to Congress. And certainly no one anticipated during the Act’s several renewals in 1970, 1975, 1982, and 2006, that the Supreme Court would step in for Congress. Congress and the Court instead worked in tandem, partners in an inter-branch dialogue, updating and implementing the many powerful provisions of the Act.
The Court’s conservative members thus shattered a distinctive inter-branch partnership. More or less stamping their feet, they insisted on the relevance of the Act’s foundational assumption, as if it were a pre-nup agreement to be hauled out of a safe deposit box after nearly half a century of marriage. What, then, is left amid the wreckage of the Court’s defection from the inter-branch partnership?
For one thing, the possibility of congressional initiative now stands in sharp relief. Congress has been deeply involved in voting rights since the 1956 Civil Rights Act. Congress might well be able to re-design a durable, national system for protection of voting rights.
That will be very hard work, especially given the Republican party’s commitment to tough voter eligibility standards, and thus to voter identification legislation. Also, any presidential pressure on Congress would be polarizing. Obama is the first president with voting rights on his agenda since Lyndon Baines Johnson to truly support voting rights, unlike the Republican presidents who previously presided over extensions of the Voting Rights Act. Yet in the current context of partisan rancor he probably must keep quiet and let Congress lead. A bipartisan congressional coalition that would answer the Court currently appears unlikely, to be sure. But there are hidden wells of bipartisanship all through Congress that can be tapped or drilled, and this is as likely a bipartisan well as any that the Congress currently has.
Second, because the Supreme Court rather surgically invalidated the coverage formula of the Voting Rights Act but left the rest intact, we will now see how helpful the lower federal courts can actually be. Litigation under Sections 2 and 3 of the Voting Rights Act will be time-consuming and uncertain. But the lower federal courts are more liberal on voting rights than the Supreme Court, and they may run ahead of the Court.
Third, there is a great deal of talent and capacity in the Civil Rights Division of the Justice Department. It has been active in one form or another since the late 1930s. The Bush Administration weakened the Civil Rights Division – and a future Republican president may do the same. But it is a significant institutional resource for protecting voting rights.
Still, history tells us that we are at a crossroads in the evolution of American democracy. We had a Reconstruction, the First Reconstruction after the Civil War, and for a time it was a considerable success. We had African-American members of Congress, Louisiana briefly had a black governor, and the South Carolina Supreme Court had an associate justice who was African-American. The turnout rate among African-American adult male voters was about 80% in presidential elections. Despite conflict and terrible violence in a region recovering from the ravages of war, the First Reconstruction was a unique moment in the history of democracy.
In yet another unique moment in the history of democracy, we also had a great disenfranchisement. Black voting and office-holding were reduced literally to zero in the South by about 1900. It took until the 1960s to rebuild the strength of black politics and to force the country to enact the Voting Rights Act. American democracy required a Second Reconstruction, to use the coinage of the great American historian, C. Vann Woodward.
Nothing like the stunning reversal of democracy that happened by 1900 is in the cards today. But we must never forget that democratic revolutions can go backward. The Court’s conservative majority deliberately chose to forget. The rest of us must not make the same mistake.