1Discussion about black suffrage in the US began in earnest on April 11, 1865. Two days after General Robert E. Lee had surrendered the Army of Northern Virginia, and with the end of the Civil War in sight, Abraham Lincoln came to the window of the White House to give what turned out to be his last speech. He laid out his vision for the post-war nation and proposed giving some Blacks, especially those who had fought in the war, the right to vote. It was the first time an American president endorsed publicly even limited black suffrage (Foner, 2010, 331). John Wilkes Booth was supposedly part of the crowd. In the aftermath of the Civil War and Lincoln’s assassination, the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution were adopted. In 1869, during the congressional debate over the Fifteenth Amendment, Senator Waitman T. Willey, a Republican from West Virginia, proclaimed from the Senate Floor:
This Amendment, when adopted, will settle the question for all time of negro suffrage in the insurgent States, where it has lately been extended under the pressure of congressional legislation, and will preclude the possibility of any future denial of this privilege by any change in the constitutions of those states (cited by Epstein & Walker, 2007, 749).
2Quite an optimistic prediction. And he wasn’t the only one ready to put the matter to rest. After the Fifteenth Amendment was passed, a New York Times’ editorial asserted that the amendment would “put an end to further agitation on the subject” (Keyssar, 2000, 103). In retrospect it couldn’t have been further away from the truth. Although ratification meant that states were constitutionally prohibited from engaging in racial discrimination, Southern states prevented blacks from voting as soon as the policies of Reconstruction ended. These actions aimed at limiting Black suffrage were numerous: white-only voting in Democratic Party primaries, poll taxes, literacy and understanding tests, difficult registration requirements and intimidation. These tactics were so efficient that black participation at the ballot box in the South was negligible well into the 1950s.
- 1 For example, between 1956 and 1965 black voter registration in Louisiana was stable (31.7% to 31.8% (...)
3Beginning in the 1960s the federal government tried to take action to address racial discrimination at the polls. For a while all three branches of government seemed to work in unison. Congress passed legislation to enforce voting rights and remove legal barriers to the ballot box. The executive branch sued state governments and local officials that deprived African-Americans of their voting rights. And the judiciary stepped into the political thicket. For instance, in 1965, in Louisiana v. United States, the Supreme Court struck down Louisiana’s “understanding test” which allowed local voting registrars to decide whether individuals attempting to register had a sufficient understanding of state and federal constitutions to be qualified to vote. But judicial rulings alone were not sufficient to bring about major change, particularly with respect to voting participation among minorities. Too many alternative measures, many of them informal or indirect, were available to block or delay the exercise of the franchise. Statistics showed that congress strategy of passing legislation to expand opportunities for taking civil rights claims to court had been ineffective. Registration numbers in southern states show that victories in court do not necessarily translate into social change1.
4A more aggressive policy was required. The Voting Rights Act of 1965, enacted on August 6, 1965, one hundred years after Lincoln’s last speech, came after three attempts to facilitate black registration. The Civil Rights Acts of 1957, 1960 and 1964 had only produced modest improvements in black registration rates in the South. President Johnson directed his attorney General, Nicolas Kazenbach, to draft “the goddamnedest toughest voting rights law you can devise” (May, 2013). And the VRA was no ordinary piece of legislation. People had died for it. Americans had fought all over the country on bridges, in churches, in their homes. They had to face police brutality, attack dogs and firebombs to give life to the Fifteenth Amendment. The law bitterly divided the nation and it is written in the US Code with blood and tears.Understanding that the redemption of the American democracy was at stake Lyndon Johnson pleaded before Congress : “And should we defeat every enemy, should we double our wealth and conquer the stars, and still be unequal to this issue, then we will have failed as a people and as a nation”2.
5The VRA was a groundbreaking law in the sense that it granted the federal government unilateral power to intervene in election administration of state and local governments. The right to organize its own elections is one cornerstone of state sovereignty and Section 5 has been viewed since its implementation as one of the most important exceptions to American federalism. Opponents argue that it does not only violate the sovereignty of the states but its application is discriminatory since it is not applied to all the states. For conservatives, Congress exceeded its powers in 1965. The VRA advocates have long established that a reform of the states of the former Confederacy could not happen without a strong continued response from the federal government.
6This made the VRA one of the most effective desegregation policies in the era (Davidson & Grofman, 1994). The VRA was enacted as a 5-year temporary legislation, and was enacted through the bipartisan support of non-Southern members of Congress. As soon as 1966 its constitutionality was questioned in 6 states in South Carolina v. Katzenbach, 383 U.S. 301 (1966). In this case the Supreme Court found Section 5 and 4(b) to be valid exercises of the power of Congress under section 2 of the Fifteenth Amendment.
7One important feature of the VRA is that it banned literacy tests and put tough restrictions on poll taxes in state elections. In 1966, in Harper v. Virginia State Board of Elections, the Supreme Court found that poll taxes imposed as vote requirement in state elections violated the Fourteenth amendment. Specifically, even after the passage of the 24th Amendment in 1964 banning poll taxes, some Southern states continued to implement the poll tax until the Supreme Court struck it down in 1966. To cope with their noncompliance, Section 10 of the VRA enabled the Attorney General to “institute,” or challenge, the use of poll taxes, thus effectively restricting its use. An abundance of studies shows that these institutional barriers suppressed minority voting (Alt 1994; Filer, Kenny and Morton 1991; Key 1949). Another important feature of the VRA is that it designated a state or county government as a covered jurisdiction if it implemented any discriminatory test or device, or if the voting registration rate or voting turnout in the presidential election of 1964 among the voting population was lower than 50%. The 1965 VRA designated the entire states of Alabama, Georgia, Louisiana, Mississippi, South Carolina, and the Commonwealth of Virginia as well as 40 out of 100 counties in North Carolina as covered jurisdictions. Once designated, covered jurisdictions needed preclearance from the federal government for any change in rules that could affect public elections. Moreover, on the request of residents, federal officials can review the voter registration process and monitor the elections in covered jurisdictions. Thus, the VRA severely limited the ability of southern governments to discourage minority representation. African-American voter registration rates among VRA-covered states rose from 27.9% before the VRA to 54.7% after it passed (Rosenberg 2008). Then, it is reasonable to assume that southern governments expected that minority voters would start affecting policy making in the near future, they therefore started to look for new ways to make this vote less meaningful.
- 3 These three extensions were validated by the Supreme Court in Georgia v. United States, 411 U.S. 52 (...)
- 4 42 U.S.C. § 1973aa-1a(e).
8The duration and scope of the law on the right to vote was extended by Congress in 1970, 1975 and 19823. Since 1975, under pressure from the Chicano movement, the law on electoral rights was extended to linguistic minorities. Section 4 now covered states and counties that had at least 5% of their voting age population belonging to a linguistic minority, namely: “Indians” and “People from Alaska,” “Asians” and “persons of Spanish origin.”4 If the ballots of those jurisdictions were in English and there were no translators (especially for languages that are oral) then the elections are considered discriminatory. Congress in 1975 extended the VRA for an additional seven years and the law of electoral rights beyond the Fifteenth Amendment (racial discrimination in elections) and the South (it now covered much of the Southwest and West of the country). In fact, the protection of linguistic minorities appears to be an extension of the Fourteenth Amendment and the Equal Protection Clause.
- 5 Mobile v. Bolden 446 U.S. 55 (1980) justice Stewart’s opinion, joined by justices Powell and Rehnqu (...)
- 6 The Senate Committee on the Judiciary issued a report to accompany the 1982 legislation. In that re (...)
- 7 Voting Rights Act, Section 2(b). Italics added by author.
9In 1980, the Supreme Court stated that the drawing of an electoral district was illegal if it limited the voting power of a minority intentionally5. But, given the practical difficulties of proving intent to minimize minority voting from indirect factors such as the shape of a district, Congress in 1982, extended the VRA for another 25 years and showed his disagreement with the decision in Bolden and amended section 2. This was key moment since Section 2, in its original version, dealt only with election procedures aimed at minimizing the impact of the minority vote. Now demonstrating a disproportionate effect was sufficient to justify invalidation. The result of the test of “totality of the circumstances”6, if not enough to invalidate an election procedure under the Constitution, including the Fourteenth and Fifteenth amendments, becomes sufficient to invalidate in light of Section 2 as amended in 1982.7
- 8 This dilution can occur in numerically equal districts and in the absence of any inequality in acce (...)
10This amendment was accused of forcing the courts to move towards proportional representation of non-white minorities. Thus, we are witnessing a transformation of the rights guaranteed by the VRA. This text, which initially guaranteed rights for Blacks to register as voters and to vote, quickly was used to tackle second-generation discrimination and thereby solve a different but related problem: the dilution of the impact of the vote of minorities. The issue is no longer outright deprivation of the right to vote, but the dilution of the impact of this vote.8
11The issue of electoral equality is further complicated by the confluence of the ethno-racial affiliation and party affiliation in the United States. That is why Jesse Rhodes’ analysis of partisan regimes and institutional changes is so crucial to understand how strange and ironic the career of the Voting Rights Act has actually been (Kousser, 2008) but also to place the debate about voting rights in its wider political context. Over the course of 50 years, the Democratic partisan regime coalesced around minority voting rights while the Republican partisan regime rejected the advancement of minority voting rights, instrumentalized this racial divide for partisan gains and when thwarted legislatively turned to the judicial branch to advance its agenda.
12One of the reasons why such “competing racial orders” (Smith & King, 2011) aligned with partisan interest is because the issue of political representation of non-white minorities is inseparable from its partisan effects. Because of the ethno-racial polarization of the vote, this standard impacts partisan balance since racial and partisan affiliations have become “two sides of the same coin.”(Cain, 2013, 338)Given the level of ethno-racial polarization of the vote in the US and since the Republican electorate is overwhelmingly white, the creation of majority minority districts actually guarantees the election of a Hispanic or an African-American, but also a Democrat. So progressives seem to have a partisan interest when they defend the right of minorities to exercise “undiluted” voting rights. However, this is not necessarily the case. Redistricting is a zero-sum game. A predominantly Democratic district has the effect of making the adjacent districts predominantly Republican. Therefore Republicans, as part of their Southern Strategy, encouraged creating a handful of majority minority districts in order to secure the domination of the conservative party in other districts. That is why some scholars focus on substantive representation of minority interests, while other scholars emphasize descriptive representation (Guinier, 1991; Swain, 1993; Cameron, Epstein, O’Halloran; Tate, 2001; James, 2011). The absence of any discussion of racial polarization in the recent Supreme Court jurisprudence is, in the words of Richard Engstrom, the “elepant in the room”. In his article professor Engstrom shows that the absence of such central topic when dealing with voting rights is an indictment of justice’s Robert’s sincere commitment to racial equality. All the data accumulated by political scientists indicate that the level of polarization is such that ignoring it and asserting that the conditions in the South have changed is nothing more than incantation.
13During the 1990s and 2000s the inter-branch dialogue over the VRA continued. Since the 1990s, the Supreme Court’s conservative majority jurisprudence has shifted from the question of the validity of procedures diluting the minority vote to that of the validity of procedures increasing the impact of the minority vote. In Reno v. Bossier Parish School Board, 520 US 471 (1997) the Supreme Court stated that the Department of Justice cannot, by virtue of the powers conferred by Section 5, object to electoral change for the simple reason that it appeared to violate Section 2. If such a change did not violate “regression” criterion, the Department of Justice had to validate it. It was considered by the Court as an abusive incorporation of Section 2 into Section 5. In a second case, Reno v. Bossier Parish School Board 528 US 320 (2000) or Bossier II, the Court held that Section 5 did not allow federal authorities to oppose redistricting plans that would reflect a discriminatory intent if they did not result in a reduction of the impact of the minority vote, that is to say, the number of districts they “control”. However, legislatures were stuck between a rock and hard place. Indeed, if a State drew majority minority districts, it could fall within the perview of Section 2 of the VRA under the Gingles jurisprudence. If it created them, it could fall under the scope of the Equal Protection Clause of the Fourteenth Amendment following the Shawv. Reno 509 U.S. 630(1993) and Miller v. Johnson 515 U.S. 900(1995) jurisprudence.
- 9 Since the concept of vote dilution was accepted by the court in the case Allen v. State Board of El (...)
14In 2003, in the case Georgia v. Ashcroft 539 US 461 (2003), the Supreme Court reinterpreted the “regression” standard of Section 5. Before Georgia v. Ashcroft the analysis of the courts was that, according to the Beer jurisprudence, “regression” happened when the number of majority minority districts was reduced, or when the percentage of the minority population in these districts was reduced significantly.9 However, Georgia v. Ashcroft established that these measures were acceptable if, under the totality of circumstances standard, the legislature continued to draw districts to ensure that minority groups could significantly influence the election without “controlling” it. Yet, this decision did not specify exactly what constituted an influence district (Engstrom, 2010).
15In 2006, supporters of renewal of the VRA insisted on adding amendments to “correct” the Bossier II and Ashcroft jurisprudence as they had done in 1982 facing the Bolden jurisprudence. According to them, the Supreme Court went against the will of Congress and its decision was contrary to the spirit of the law. Their opponents obviously refused to support these changes but offered other amendments aiming at weakening Section 5 and Section 203. In the end the VRA as amended by Congress in 2006 invalidated the Bossier II jurisprudence that allowed discriminatory redistricting plans if they did not have a regressive purpose. It stated that it was not legal to validate a redistricting plan if it had either a regressive purpose or a discriminatory purpose. The VRA also invalidated the Aschroft jurisprudence that allowed a minority to influence the election of a white candidate, but did not guarantee the election of the candidate preferred by a non-white minority. According the new text the purpose of Section 5 was to protect the ability of minority citizens to “elect the candidate of their choice.”
16Since 1982, the Court had narrowed its view of Congress’s power to enforce the post-Civil War amendments which are the constitutional basis for Section 5 of the VRA. Therefore Congress amassed a huge factual record and held extensive hearings to determine whether it should once again reauthorize the VRA preclearance formula and rule. Congress reauthorized the VRA for another 25 years.
17The U.S. Supreme Court’s recent decision to strike down a key component of the 1965 VRA closes one of the most successful chapters in the history of civil rights enforcement. “Our country has changed,” Chief Justice Roberts opined for the majority, “and while any
racial discrimination in voting is too much, Congress must ensure that the
legislation it passes to remedy that problem speaks to current conditions.” Significantly, the Shelby County decision deemed the Section 4 coverage formula invalid, but did not strike down Section 5. Presumably, if Congress passed a coverage formula tailored to current conditions, Section 5 remains a viable enforcement provision. However the facts seem to contradict Justice Roberts. Thanks to the most extensive database on the Voting Rights Act accumulated over several decades, Morgan Kousser demonstrates in his thorough analysis that Section 5 was a remedy that actually spoke to the current conditions. And that if the Court had looked hard enough at the evidence it might have opted to defer to Congress.
18Alas, the Court was on a different path. The Shelby decision was not a surprise since scholars had indicated for a long time that Section 5, as worded, was problematic for a conservative court (Issacharoff, 2004; Hasen, 2005). In addition, in 2009, in Northwest Austin Municipal Utility District Number One v. Holder, 557 US 193, 2009 (NAMUDNO), in a majority opinion also written by John Roberts, the Supreme Court had suggested that Section 5 seemed constitutionally suspect and it encouraged Congress to revise it. However, neither NAMUNDO nor Shelby addressed the central question of the constitutionality of Section 5. And yet for all instance and purposes Section 5 is dead. Professors Brunell and Manzo, in their article, explain why Section 5 is still necessary and propose alternative methods to protect minority voting rights through administrative notification while Congress struggles with enacting a new formula. Laughlin McDonald, special counsel and director emeritus of the Voting Rights Project of the American Civil Liberties Union, reviews in his article the different steps (or lack thereof) that Congress has taken since the Shelby decision and proposes other ways to compensate for the absence of preclearance by for instance strengthening Section 2 and Section 3.
19Since the ruling, several states once covered under preclearance have passed voter ID laws that removed provisions such as online voting registration, early voting, “Souls to the Polls” Sunday voting, same-day registration, and pre-registration for teens about to turn 18, which had expanded means of voter registration. The scope of the racial and partisan impact of these measures is difficult to evaluate so far. However, restriction of the right to vote, rather than expansion, is never a good sign in a democracy. Rogers M. Smith and Desmond King, in their article, explain that the future of American politics is rather bleak on the voting rights front. As long as the conservative movement sees voting rights suppression as a partisan tool, racial policy alliances will continue to structure American politics and American elections and governance might be paralyzed by the voting wars (Hasen 2012).