The Voting Rights Act of 1965 was an extraordinary piece of legislation. Its passage was catalyzed by the activism of Martin Luther King, Jr., and the community organizing of countless individuals, young and old. It has had an extraordinary effect, dramatically increasing African American voter registration and participation in the South.
The US Supreme Court’s recent decision ruling key provisions of the Act unconstitutional also emphasized the Act’s “extraordinary” nature. It was an extraordinary intrusion on the sovereignty of the states, and on their right to be treated equally by the federal government. This extraordinary intrusion was justified by extraordinary circumstances, when massive numbers of African Americans were disenfranchised, but those circumstances no longer exist.
It is not the right to vote, or the right to vote without prerequisites like literacy tests, that is at issue. Rather, it is the manner in which rights can be protected. The Voting Rights Act not only prohibited barriers to voting, it also required certain states, mainly in the South, to submit changes in their election laws to the US Department of Justice or a federal court for approval before they would take effect. Previous voting rights legislation had been circumvented by states: states would enact new laws to limit voter participation just as soon as old laws were invalidated. To challenge these laws took time and resources. So, the Voting Rights Act’s “pre-clearance” mechanism stopped bad laws from ever being enforced.
According to the Court’s decision, extraordinary wrongs were no longer addressed by this pre-clearance mechanism because the states in which pre-clearance was required were chosen based on their election practices in 1965. In some of these jurisdictions today, voter registration and participation is actually higher among African Americans than among whites. (The Act still allows for post facto challenges to be brought against enacted voting laws in all states.) Moreover, the Court ruled that, if Congress comes up with a better formula to select states for pre-clearance, that portion of the law can go back into effect.
We might lament that Congress did not devise a better formula when the law was renewed in 2006. Congress held extensive hearings, accumulated thousands of pages of testimony and studies on voter discrimination, and eventually renewed the Act overwhelmingly: 98 to 0 in the Senate and 390 to 33 in the House. However, the issue was highly charged, and amending the formula would have opened a can of worms that politicians wanted to keep shut.
Access to the ballot is still a huge problem in the US, and states continue to invent ingenious methods to lower minority voter participation (of course there are many extralegal methods that continue to be employed as well). Voter registration and participation numbers do not tell the whole story, just as they did not tell the whole story in 1965. Then, low electoral participation among African Americans was but a symptom; the disease was a culture of white supremacy. It was that culture which was extraordinarily malicious, which called for extraordinary protections. In her dissent, Justice Ginsburg lists just a few recent examples from the South. Among them: a mayor cancelling an election when it seemed that African American candidates might win, a South Carolina county changing its school board composition to minimize African American representation, a Texas county limiting early voting when there were African American candidates. Ginsburg cites a 2010 Mississippi investigation:
“Recording devices worn by state legislators cooperating with the FBI’s investigation captured conversations between members of the state legislature and their political allies. The recorded conversations are shocking. Members of the state Senate derisively refer to African-Americans as ‘Aborigines’ and talk openly of their aim to quash a particular gambling-related referendum because the referendum, if placed on the ballot, might increase African-American voter turnout.”
The doctrine of separate-but-equal was once the mask worn by racism. The mask of equality is now decorated with statistics. If the voter participation numbers are equal, the racism is thought to be gone. The Civil Rights Movement was invoked and lauded by both the Supreme Court decision striking down parts of the Voting Rights Act and by the dissent. But Martin Luther King was advocating a change in laws as a means to a deeper change, a change in spirit. King’s beloved community is animated by the spirit of equality, not the appearance of equality. We need more than a better formula to remedy voter disenfranchisement. We need to recognize the malign spirit that continues to cause disenfranchisement. Formulas and statistics can be used tactically in struggles for equality, but our strategy must be to remedy broken souls.
Only two religious organizations filed friend-of-the-court briefs in the Voting Rights Act case. Both were conservative Christian groups supporting the Alabama county challenging the Act. They argued simply that Congress had exceeded its authority in renewing the Act. While historians, political scientists, law professors, and veterans of the Civil Rights Movement all weighed in on the case as friends-of-the-court, it is puzzling that other religious organizations did not see the moral, spiritual dimension of the right to vote – and the demonic dimension of white supremacy.