NAACP field director Charles White speaks outside the U.S. Supreme Court Building in Washington on June 25, 2013
William Faulkner famously wrote that, “the past is never dead. It’s not even past,” but the Supreme Court is deeply divided on that question—at least as it pertains to the historic Voting Rights Act. By a slim 5-vote majority, the justices struck down a provision that requires certain jurisdictions, mostly counties in the South, to receive permission from the federal government before changing any law related to voting.
The list of places is based on blatant race discrimination in a troubled past now 40 years distant, Chief Justice John Roberts wrote for the majority. “The conditions that originally justified these measures no longer characterizes voting in the covered jurisdictions,” he declared, noting that “African-American voter turnout has come to exceed white voter turnout in five of the six states originally covered” by the provision.
Arguing that the past is still with us were four dissenting justices, with Justice Ruth Bader Ginsburg doing the writing. Noting that Congress reauthorized the Voting Rights Act as recently as 2006—including its list of covered jurisdictions—Ginsburg maintained that the lawmakers found after extensive study that “40 years has not been sufficient time to eliminate the vestiges of discrimination following nearly 100 years” of racial discrimination. While poll taxes and literacy tests no longer bar black citizens from exercising their franchise, subtler modes of discrimination are still employed to dilute the impact of their votes, Ginsburg wrote. She cited such practices as at-large elections of city council members (allowing a white majority to elect the entire council) and annexation of majority-white neighborhoods to raise the percentage of white voters in a given jurisdiction.
None of the justices disputed the fact that the Voting Rights Act was necessary and constitutional when it was first enacted in 1965. That was the year Martin Luther King Jr. led a march through Alabama in support of the law, from Selma to Montgomery, only to be attacked by white state troopers along the way. Existing laws, which required expensive and time-consuming lawsuits to challenge each example of racial discrimination, were insufficient to enforce voting rights across hundreds of jurisdictions in states determined to resist equal rights. “Case-by-case litigation had proved inadequate to prevent such racial discrimination in voting,” Roberts wrote. Stronger medicine was needed in the jurisdictions that were most determined to suppress minority voters.
In challenging the 2006 extension of the law, authorities in Shelby County, Alabama—suburban Birmingham—argued that the conditions that earned their county a place on the list of covered jurisdictions no longer apply. Ginsburg and her associates (Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan) weren’t buying it. Given the racial polarization of Alabama’s political parties, she observed, such practices as drawing district boundaries and scheduling elections—the ordinary push and pull of party strategists jockeying for advantage—may produce outcomes that dilute black votes.
The majority (which included Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito) ruled that Congress must do a fresh analysis of contemporary voting patterns to create a new list of covered jurisdictions. But politically speaking, that’s unlikely to happen. While passage of the original list wasn’t easy, the charter members were obvious to most Americans at a time when civil rights workers were being beaten and murdered, and Southern governors were openly defying federal civil rights laws.
In saying that the right to vote shall be enforced the same way everywhere in the United States, the Court has announced that the nation has moved beyond that era of blatant discrimination. While acknowledging that discrimination continues in subtler ways, the majority preferred to focus on the extensive improvement wrought by the Voting Rights Act. The previous day, the Court hinted that something similar may be true of race-based affirmative action programs. Desperate times once called for desperate measures in American race relations, but at the Supreme Court, those desperate days are over.