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† Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI. Criminal Injustice is published every Wednesday at 6 pm CST

Why The Voting Rights Act Is Still Necessary Today
by Scottie Thomaston aka indiemcemopants

After the end of the Civil War, Congress ratified the 13th, 14th and 15th Amendments to the Constitution. The 13th Amendment ended slavery “except as punishment for crime” which left state governments with the ability to enforce enslavement through other means:

Although the creation of African-American free communities and institutions during Reconstruction were almost immediately threatened by new configurations of white power and supremacy, freed slaves continued to exercise their right to vote and hold office in order to enact their own plans for education, land ownership, and self-determination. This incomplete transformation was cut short by vigilante justice and racialized violence, as well as by the state-sponsored criminalization of African Americans.

In the past decade, several influential studies of this period have revealed the relationship between emancipation, the 13th Amendment, and the convict lease program (Lichtenstein, 1996a; Mancini, 1996; Davis, 1999). Built into the 13th Amendment was state authorization to use prison labor as a bridge between slavery and paid work. Slavery was abolished “except as a punishment for crime.” This stipulation provided the intellectual and legal mechanisms to enable the state to use “unfree” labor by leasing prisoners to local businesses and corporations desperate to rebuild the South’s infrastructure.

The prison industrial complex is still in full force today. Through enforcement of stringent drug laws and through police violence and harassment, a disproportionate number of black Americans and especially black men are residing in our nation’s prisons. This is no accident; it’s a byproduct of the fact that our nation never fully took seriously the task of ending slavery and allowing incorporation of black people into society as full citizens of the United States through appropriate legal and constitutional means. Simply eradicating pieces of an institutionalized system of oppression that had its roots in the early 1600s is not good enough. The number of prisoners who are racial minorities is staggering:

More than 60% of the people in prison are now racial and ethnic minorities. For Black males in their twenties, 1 in every 8 is in prison or jail on any given day. These trends have been intensified by the disproportionate impact of the “war on drugs,” in which three-fourths of all persons in prison for drug offenses are people of color.

And it’s not just the fact that so many of our citizens are stuck in prison or even that there is an institutional system in place to keep them there. We also have to look at the differences between the rights of people who have been imprisoned – rightly or wrongly, and more often than not, wrongly – and the rights of people who have not, the latter category consisting of a whole lot of white people:

Yet, in all but two states, citizens with felony convictions are prohibited from voting either permanently or temporarily. The United States is the only country that permits permanent disenfranchisement of felons even after completion of their sentences.

Policies on felony re-enfranchisement among the 50 states are so inconsistent as to create confusion among, not only those former offenders who wish to regain the right to vote, but also the very officials charged with implementing the laws. The result is a network of misinformation that discourages some legally eligible voters from registering to vote and places undue restrictions on others during the registration process. Former offenders who are unaware of their state’s restrictions may slip through, register, vote, and in doing so, unwittingly commit a new crime.

If black Americans are disproportionately imprisoned regardless of guilt or innocence or the severity of the crime and if the imprisoned are denied eligibility to vote, a lot of black people and other racial minorities are being disenfranchised at the outset. This is now, in 2012, hundreds of years after all three Reconstruction Amendments were ratified.

There were other issues aside from slavery that needed addressing, however. The 14th Amendment was passed largely with the purpose of overturning Dred Scott v. Sanford, which was a decision that said, among other things, that black people were not citizens of the United States, because they are “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.” The 14th Amendment granted citizenship to “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof[.]” This took away a badge of inferiority – though only one of those burdens that have been imposed by state governments and the federal government – and conferred all the “privileges or immunities” and due process rights upon everyone who falls under the amendment’s definition of a citizen.

This provision is under attack by the conservative movement today, by way of discussions of the so-called ‘threats’ that immigration invites into the United States. The attempts to scare the populace are of course unfounded distortions and in a lot of instances are outright lies.

The provision of the 14th Amendment known as the “Privileges or Immunities Clause” has also been limited or outright eliminated – depending on your interpretation of Supreme Court cases that decided the issue. (Even, notably, Justice Clarence Thomas wants to resurrect that clause.)

The last of the Reconstruction Amendments is the 15th Amendment. The Amendment stated that the right to vote in state and national elections shall not be denied based on race, color or previous condition of servitude. It explicitly gave Congress the power to enforce the Amendment through legislation – provided, of course, the legislation was constitutional under the other parts of the United States Constitution. In response to the Reconstruction Amendments, the Black Codes were written and enforced by the states to prevent, through de jure discrimination, enfranchisement of black people and full acceptance of those people as citizens. The Ku Klux Klan was formed in order to enforce White Supremacy and to terrorize free blacks – especially black men – and to threaten their political allies. Along with groups that came into being in later years such as the White Citizens’ Council and the Council of Conservative Citizens, these white supremacist groups had a major stranglehold on the advancement of black people for generations.

Even when northern states abandoned many of their previous attempts to enforce structural racism, the South wouldn’t let go. Through imposition of poll taxes, literacy tests and outright fraud, abuse and violence, the South managed to disenfranchise most black voters well after the 15th Amendment was ratified. Even if the South had not been able to use the law to enforce this behavior, the violence was in many cases enough to prevent black voters from showing up to the polls. And of course if black men thought they could get away with exercising their constitutional rights, they were oftentimes publicly lynched just to reinforce the point.

The Amendment’s allowance for legislative remedies to correct this culture of violence – both personally and police-enforced – led to the Voting Rights Act of 1965:

Congress determined that the existing federal anti-discrimination laws were not sufficient to overcome the resistance by state officials to enforcement of the 15th Amendment. The legislative hearings showed that the Department of Justice’s efforts to eliminate discriminatory election practices by litigation on a case-by-case basis had been unsuccessful in opening up the registration process; as soon as one discriminatory practice or procedure was proven to be unconstitutional and enjoined, a new one would be substituted in its place and litigation would have to commence anew.

President Johnson signed the resulting legislation into law on August 6, 1965.
Section 2 of the Act, which closely followed the language of the 15th amendment, applied a nationwide prohibition against the denial or abridgment of the right to vote on the literacy tests on a nationwide basis. Among its other provisions, the Act contained special enforcement provisions targeted at those areas of the country where Congress believed the potential for discrimination to be the greatest. Under Section 5, jurisdictions covered by these special provisions could not implement any change affecting voting until the Attorney General or the United States District Court for the District of Columbia determined that the change did not have a discriminatory purpose and would not have a discriminatory effect. In addition, the Attorney General could designate a county covered by these special provisions for the appointment of a federal examiner to review the qualifications of persons who wanted to register to vote. Further, in those counties where a federal examiner was serving, the Attorney General could request that federal observers monitor activities within the county’s polling place.

The NAACP was formed to help lead the fight to protect voting rights for black Americans.

Like the consistent attacks on the 13th and 14th Amendments and like the underhanded way that versions of slavery and denial of full citizenship and civil rights are still attempted these days, the erosion of the 15th Amendment has become a longstanding problem. The erosion of the Voting Rights Act – passed due to the power granted by the Amendment – is also a problem.

From almost the first challenge to the Act, some Justices began calling for it to be struck down by the Court. The 2009 constitutional challenge to the Voting Rights Act resulted in the Supreme Court decision Northwest Austin Municipal Util. Dist. v. Holder, which kept the Voting Rights Act intact for the time being. But the Court noted its readiness to review the issue, as well as the fact that its constitutionality has been questioned for decades:

The historic accomplishments of the Voting Rights Act are undeniable. When it was first 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. Katzenbach, supra, at 313; H. R. Rep. No. 109–478, p. 12 (2006). Today, 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. Id., at 12–13. Similar dramatic improvements have occurred for other racial minorities. Id., at 18–20. “[M]any of the first generation barriers to minority voter registration and voter turnout that were in place prior to the [Voting Rights Act] have been eliminated.” Id., at 12; Bartlett v. Strickland, 556 U. S. 1 , ___ (2009) (slip op., at 5) (plurality opinion) (“Passage of the Voting Rights Act of 1965 was an important step in the struggle to end discriminatory treatment of minorities who seek to exercise one of the most fundamental rights of our citizens: the right to vote”).

At the same time, §5, “which authorizes federal intrusion into sensitive areas of state and local policymaking, imposes substantial ‘federalism costs.’ ” Lopez, supra,at 282 (quoting Miller v. Johnson, 515 U. S. 900, 926 (1995) ). These federalism costs have caused Members of this Court to express serious misgivings about the constitutionality of §5. Katzenbach, 383 U. S., at 358–362 (Black, J., concurring and dissenting); Allen, 393 U. S., at 586, n. 4 (Harlan, J., concurring in part and dissenting in part); Georgia, supra, at 545 (Powell, J., dissenting); City of Rome, 446 U. S., at 209–221 (Rehnquist, J., dissenting); id., at 200–206 (Powell, J., dissenting); Lopez, 525 U. S., at 293–298 (Thomas, J., dissenting); id., at 288 (Kennedy, J., concurring in judgment).

Given its import, the fact that such a conservative Court is responsible for reviewing this issue generally leaves its constitutionality hanging on by a tenuous thread. It shouldn’t escape notice that the current Chief Justice has a longstanding interest in ending affirmative action programs, turning the precedent Brown v. Board of Education into a decision that is meant to strictly enforce “color-blindness” instead of racial equality and equal opportunity in education programs, and typically attempting to ignore racial disparities affecting most areas of law. He is, after all, the Justice who has stated that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In reality it’s not that simple. The Court can’t simply mandate color-blindness. The Court can’t simply address serious issues of privilege and institutional racism by carefully avoiding serious issues of privilege and institutional racism. Color-blindness is not possible in this country right now, not with rampant disenfranchisement through so many means – legal and otherwise – still ongoing today. I’m not sure it will ever be possible. In all honesty, I don’t think it’s a worthy goal in the first place. We white people cannot work on shedding our privilege without addressing our privilege head-on. We can’t claim that true equality exists when we ignore the myriad inequalities faced by black Americans and when we ignore the fact that our laws are still designed, in a lot of ways, to exacerbate these inequalities. We have to acknowledge this isn’t some unfortunate byproduct of our legal system. It is the reason for many of our legal system’s historic and current operations. It has been this way for centuries.

In that particular case the Court decided to skip over the constitutional issue, ruling narrowly that the district in question could be “bailed out” from the preclearance requirements of Section 5 – requirements that are designed to force districts with a history of racially disenfranchising black voters to ask the Department of Justice before making any changes to procedures related to voting. As the New York Times pointed out in 2009, “Section 5 applies to Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina and Texas; most of Virginia; counties and townships in California, Florida, Michigan, New Hampshire, North Carolina and South Dakota; and three New York City boroughs, Manhattan, Brooklyn and the Bronx.”

This year, the issue is back before the courts, due to the census and new district maps. Given the recent efforts – efforts that have unsurprisingly escalated since the election of the nation’s first black president – to disenfranchise more voters, particularly minorities, through imposition of new voter ID laws and other restrictions on voting, it is especially important to focus on the constitutional challenges to the Act which was passed into law in response to similar (though sometimes admittedly more egregious) forms of disenfranchisement.

The case that has been featured most prominently in the news as of late is Perry v. Perez a case related to challenges facing the Texas district maps. The question is over “[t]he power of a federal court to impose a new legislative districting plan for federal elections, when the state’s plan has not obtained required preclearance in Washington.”

Simply put, the decision in this case could be yet another blow to the process laid out in Section 5 of the Voting Rights Act. Even if they were going to avoid the constitutional issue in yet another Term, it is still possible for the Court to chip away at the Act and make it much easier for districts to put in place maps that may not create particularly fair multiracial districts.

As SCOTUSBlog has explained, after oral argument took place on January 9th:

Well aware that it must act swiftly, the Supreme Court on Monday pondered two simple ways and one considerably more complex way to let Texas go forward with its 2012 elections for state legislature and Congress, but left open the possibility that Texas’ present election calendar might have to be stretched out. In a 68-minute argument on three redistricting cases from the Lone Star State, the Justices eagerly explored specific solutions to an unusually tangled controversy, and got into the counting of days open for them to act.

The simplest plan was to let Texas do what it wants — use the redistricting maps its state legislature drew earlier this year, unchanged. But only Justice Antonin Scalia seemed eager to embrace that approach. The next most simple plan, and one that seemed likely to get at least grudging support from the two legal combatants, was to let Texas use any part of its maps that have not been specifically challenged in court, and then require it to bear the burden of proving that the overall plan was valid, presumably before it can use the remainder. It was an idea floated late in the argument by the junior Justice, Elena Kagan.

Potentially more complex was an idea put forth by Justice Anthony M. Kennedy, to take completely out of this case any consideration of Section 5 of the Voting Rights Act, and confine it to direct questions of what parts of the Texas plan violate Section 2 of that Act, violate the Constitution, or violate one-person/one-vote guarantees. So far, that plan would put the next step up to a federal District Court in San Antonio, whose “interim” maps are under challenge before the Justices by Texas.

The state had followed up on its original challenge to the maps with a brief attacking the constitutionality of Section 5 itself:

A lively discussion that has gone on among those following the Texas redistricting cases — coming up for argument in the Supreme Court next Monday afternoon — has focused on whether the Justices might say something in those cases about the constitutionality of the key voting rights law’s provision that is centrally involved in the cases. That is Section 5 of the 1965 Voting Rights Act, and how it is enforced is what the three Texas cases are all about. In a new brief filed Tuesday, the state of Texas has given a very broad hint that Section 5′s validity could actually be on the line right now.
[…]
It is important to note, though, that Texas up to this point had been pursuing the legal grievances that are now coming before the Justices without questioning Section 5′s constitutionality. Indeed, when its lawyers filed the first plea for court review of its new legislative districting maps in a federal District Court in Washington, the document said explicitly that it was doing so “under the assumption that Section 5 complies with the United States Constitution.” Perhaps that is why Section 5, so far, has not seen to be at risk yet (although other state and local governments are going forward with challenges to it in lower federal courts).

A frightening concept indeed, though it’s not entirely clear how the Court will rule in this case. It’s a complex case and though some Justices are still expressing skepticism of the constitutionality of the Act, it is apparent that some are not quite sure this case presents the best vehicle for straightforwardly overruling it when there are so many narrower options available.

For the United States government’s part, Attorney General Holder spoke at a protest rally against a voter-ID law and promised to put the full force of the law behind the defense of the Act:

U.S. Atty. Gen. Eric H. Holder Jr. on Monday pledged to use the full force of the Justice Department to defend the Voting Rights Act, one of the keystones of the civil rights movement of the 1960s.

Speaking in Columbia, S.C., on the federal holiday honoring the birth of assassinated civil rights leader Martin Luther King Jr., Holder defended the goals of the Voting Rights Act. The law prohibited practices that prevented African Americans from going to the polls, and it gave federal agencies new powers to ensure that voting was more accessible. It went into effect in 1965 and has been extended four times, most recently in 2006.

“Protecting the right to vote, ensuring meaningful access, and combating discrimination must be viewed, not only as a legal issue, but as a moral imperative,” Holder said, according to prepared remarks distributed by the Justice Department. “And ensuring that every eligible citizen has the right to vote must become our common cause.

“Let me assure you, for today’s Department of Justice, our commitment to strengthening — and to fulfilling — our nation’s promise of equal opportunity and equal justice has never been stronger,” he said later.

I would add that it’s never been more important for the government to use the full force of its Justice Department’s constitutionally defined duties in order to to potect the Act. The erosion of racial protections has been so thorough and the protections that are left continue to face such scrutiny and outright assault from various quarters that it has never been more necessary to remain forceful and vigilant in the face of this onslaught.

It’s especially important considering Texas is far from the only state currently challenging the constitutionality of the Act. In North Carolina it is being attacked as unconstitutional, and their challenge presents unique issues:

Kinston’s appeal, however, goes further. For the first time in any Section 5 case, it makes a claim that Section 5 actually discriminates on the basis of race against whites in states that are covered by it – an equality argument that is aimed directly at changes Congress made in Section 5 when it reenacted the provision in 2006. Congress made several changes in the provision then, and those have not been targeted in court until now, in the Kinston case. Judge Bates relied heavily upon his Shelby County ruling in turning aside Kinston’s broad challenge to Section 5, but then said he had to apply different analysis to the equality argument. He wound up rejecting that challenge, too.

I want to make it clear that there are no guarantees this particular challenge will appear on the Court’s docket this Term, but it is possible:

If the Justices were inclined to take on that dispute this Term, they might well have to schedule a special sitting, since they are now due to complete oral argument on this Term’s cases on April 26. With the Circuit Court proceeding on a schedule with oral argument not likely until March in the Kinston case, and with the prospect that they would be decided together, it is difficult to see how either of the cases could reach the Court in time for a decision prior to the fall election, without a special session.

The idea that an Act written within the context of the history that has been laid out here would be unconstitutional because it is unhelpful to white people should not leave anyone feeling very secure that we all have the same promises of due process and equal protection guarantees and that the state of our laws these days is more geared toward improving the lives of racial minorities than it has been in the past. There seems to be a fairly prevalent idea that racial struggles are finally over, that Jim Crow is completely dismantled and that our Court precedents make it impossible to hurt anyone on the basis of race in 2012. This is misguided.

There are still other challenges to the Act – some may go forward and some may not. The fight for racial equality is our lifetime fight and if we want to keep the gains that those civil rights activists have made in this fight, we cannot stay silent or remain on the sidelines.

The Voting Rights Act – and Section 5 in particular – is almost more necessary today than in 1965 given the recent assault on the voting rights of racial minorities in an attempt to prevent minority voters from accessing the polls in 2012 when President Obama stands for re-election. Hopefully the Court won’t allow the disenfranchisement of anymore minority voters. The laws of this nation have historically been unkind enough to those voters.

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