They gathered at the White House in late July seven years ago, President Bush, Cabinet members, representatives and senators, Republicans and Democrats, along with many civil rights leaders. The president signed the reauthorization of the 1965 Voting Rights Act, the law, as he put it, that “broke the segregationist lock on the ballot box.”
“Today, we renew a bill that helped bring a community on the margins into the life of American democracy,” Bush told the audience. He added: “My administration will vigorously enforce the provisions of this law, and we will defend it in court.”
The occasion reflected a broad consensus. The reauthorization cleared the Senate by a 98-0 vote, and the House, 390-33. The legislation stemmed from the 15th Amendment — that the right to vote “shall not be denied or abridged … on account of race, color or previous condition of servitude” and that “Congress shall have power to enforce this article by appropriate legislation.”
Thus, the question before the U.S. Supreme Court this past session: Did Congress act appropriately?
On Tuesday, a 5-4 majority answered no. The court held that lawmakers failed to update the criteria for a key component of the law, the formula for determining which states must get federal approval in advance, or “preclearance,” of changes in voting procedures and election laws.
Writing for the majority, Chief Justice John Roberts argued that the formula must be driven by “current conditions,” taking into account dramatic advances in voter turnout among blacks and the election of scores of black candidates. He invited Congress to start from scratch. Until it does (an unlikely prospect), the court ruling amounts to “striking at the heart of the nation’s signal piece of civil rights legislation.”
Those are the words of Justice Ruth Bader Ginsburg in her dissenting opinion, a comprehensive effort, rich in detail, even in tone, yet pressing forward, exposing the hubris and the harm of the majority.
Ginsburg applauds the progress that has been made, reminding that the Voting Rights Act has succeeded where other laws long failed. Why? Because of the preclearance requirement in the covered areas. It works to avoid lengthy litigation, lawsuits following new instances of discrimination, remedies arriving years later. More, the Justice Department works with states, counties and cities, showing how proposed laws and procedures must be improved, resulting in swift action to prevent injustices.
Most striking about Ginsburg’s dissent is the record she reveals, how Congress did act in a responsible and informed way, and why the nine states, most in the South, still require federal oversight, discriminatory schemes still at work.
Read the majority opinion, and you would think Congress lacked care and seriousness. Not so. Ginsburg recalls James Sensenbrenner, a Wisconsin Republican and chairman of House Judiciary Committee, describing the effort as “one of the most extensive considerations of any piece of legislation” that he had seen in his more than 27 years in Congress.
The record covered 21 hearings, many witnesses and 15,000 pages. What did lawmakers find since the previous reauthorization in 1982?
Congress learned there were more Justice Department objections between 1982 and 2006 than during the first 17 years of the act. The department won the withdrawal or alteration of more than 800 changes.
Ginsburg uses bullet points, conveying “a sense of the extent” to which the law “continues to protect minority voting rights.” Among other instances, she cites Mississippi seeking a dual registration system, a Georgia town proposing a redistricting plan designed to diminish black voting strength, a South Carolina county pursuing an at-large system for the school board after black candidates won a majority of the seats.
Congress conducted a study to test the coverage formula. Ginsburg points to this finding: Although the covered areas amount to less than 25 percent of the country’s population, they accounted for 56 percent of the successful litigation under the act since 1982. The study also found that the covered areas had a greater degree of racial polarization.
Ginsburg notes that since 2006, an Alabama town has sought approval of a plan that would have eliminated its sole majority black district. In 2010, the FBI caught on tape Alabama state senators referring to blacks as “Aborigines” and expressing concern about a referendum that would boost black turnout. The trial judge viewed the recordings as “compelling evidence that political exclusion through racism remains a real and enduring problem” in Alabama.
The record makes plain that Congress wasn’t stuck in 1965, as Chief Justice Roberts contended, applying old data to new circumstances. The thinking of those gathered at the White House that summer day involved concerns about backsliding and subtler forms of discrimination, “second generation barriers,” current evidence shaping their judgment.
They acted appropriately, at the intersection of what Justice Ginsburg describes as “the most constitutionally invidious form of discrimination and the most fundamental right in our democratic system,” or where “Congress’ power to act is at its height.”
Douglas is the Beacon Journal editorial page editor. He can be reached at 330-996-3514, or emailed at firstname.lastname@example.org.